Citation Nr: 1807901 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 16-18 442 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an effective date prior to May 25, 2012 for the award of service connection for temporomandibular joint disorder (TMJ). 2. Entitlement to an initial rating in excess of 30 percent for TMJ. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his son ATTORNEY FOR THE BOARD Mike A. Sobiecki, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from July 1949 to July 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision issued by the Department of Veterans Affairs (VA) Appeals Management Center (AMC). The rating decision effectuated the Board's December 2014 decision that granted service connection for TMJ. This appeal has been advanced on the Board's docket due to the Veteran's advanced age. 38 U.S.C. § 7107(a)(2) (2014); 38 C.F.R. § 20.900(c) (2017); November 2017 Board Hr'g Tr. 15. In November 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ); a copy of the hearing transcript is of record. At the hearing, it was agreed upon that the record would remain open for an additional 30 days so that the Veteran could obtain and submit private dental treatment records. Hr'g Tr. 15. The 30-day period has expired; the Veteran did not submit additional evidence. The issue of entitlement to an initial rating in excess of 30 percent for TMJ is addressed in the REMAND portion of the decision below and is REMANDED to the agency of original jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran filed a claim to reopen on March 11, 2009. 2. The May 25, 2010 filing constitutes a valid notice of disagreement with the denial of the claim in an August 2009 rating decision. 3. VA was in constructive possession of new and material evidence within the 60-day appeal period following the issuance of a February 2012 statement of the case; thus, the claim remained pending and required issuance of a supplemental statement of the case under 38 C.F.R. §§ 3.156(b) and 19.31(b). CONCLUSION OF LAW The criteria for an effective date of March 11, 2009, but no earlier, for the award of service connection for TMJ have been met. 38 U.S.C. § 5110 (2014); 38 C.F.R. §§ 3.156(b), 3.400, 19.31(b) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). The Veteran seeks an effective date prior to May 25, 2012 for the award of service connection for TMJ. For the reasons that follow, the Board finds that an effective date of March 11, 2009, but no earlier, for the grant of service connection is warranted. Generally, "the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C. § 5110(a); see 38 C.F.R. § 3.400. The effective date for an award based on a reopened claim shall be the date of receipt of claim, or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). An April 1956 rating decision granted service connection for teeth # 2, 5, 10, 15, 18, 29, 30, and 31. This grant of service connection was for treatment purposes only, as the nature of the disability precluded service connection for compensation purposes. New and material evidence was not received within a year of notice of the decision. See 38 C.F.R. § 3.156(b). The Veteran did not initiate an appeal of this decision and it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. In November 2002, the Veteran filed a new claim of service connection for a dental condition. VA Form 21-526 (date stamped 11/12/2002). This was effectively a request to reopen the previously denied claim for compensation. The claim was denied in a June 2003 rating decision. The Veteran appealed this denial, and continued the appeal of this claim through consideration by the Board. In a February 2007 decision, the Board remanded the claim to schedule a Travel Board hearing. In March 2007 correspondence, the Veteran indicated that he wanted to have a hearing before regional office (RO) personnel. Accordingly, a decision review officer (DRO) hearing was scheduled and completed in November 2007. At the hearing, the Veteran withdrew his request for an increased evaluation for his lip scar; the claim pertaining to service connection for a dental condition remained on appeal. On June 25, 2008, VA received a VA Form 21-4138 signed and dated by the Veteran's authorized representative, which identified the Veteran and his file number, that stated "After consultation with the Veteran - he wishes to withdraw his appeal for S/C dental condition. Veteran also wishes to withdraw request for a Travel Board Hearing." This communication constituted a valid withdrawal of the appeal. 38 C.F.R. § 20.204. Thus, the denial of the claim in the June 2003 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. On November 24, 2008, VA received a VA Form 21-4138 from the Veteran in which he argued that the effective date of his spouse being added as a dependent was incorrect. He included supporting documentation with this submission, some of which referenced his prior grant of service connection for teeth in April 1956. When viewed as a whole, this communication did not indicate an intent to reopen his claim of entitlement to service connection for a dental condition; thus, it is not considered a new claim, formal or informal. 38 C.F.R. §§ 3.1(p), 3.155(a); Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). On March 11, 2009, VA received a letter from the Veteran in which he expressed disagreement with all of his cases of disability. This communication specifically referenced his dental condition. Later that month, the RO contacted the Veteran via telephone and clarified that he was, indeed, requesting to reopen his claim of entitlement to service connection for a dental condition. The Board, therefore, construes the March 11, 2009 communication as a new informal claim to reopen. 38 C.F.R. § 3.155. The claim to reopen was denied in a July 2009 rating decision. Notice of the RO's decision was provided on July 22, 2009. Following the receipt of additional evidence that was previously not considered, another rating decision was issued in August 2009, which also declined to reopen the claim. Notice of the RO's decision was provided on August 10, 2009. On May 25, 2010, VA received a letter from the Veteran. He identified himself and his VA file number. He specifically wrote that VA had told him that disability compensation could be paid for chronic dental conditions that began during service. He wrote that VA should look at his records from 1950-56. He indicated that he was previously denied service connection, and that he has sent in all dental records through the present. The Board finds that the May 25, 2010 letter was a written communication that expressed disagreement with the continued denial of his claim of service connection for a dental condition. While the letter did not explicitly reference the August 2009 rating decision, it expressly referred to the claim for a dental condition, acknowledged that it had been denied, and asked VA to look at the evidence again. The overall tenor of the letter indicates that he is expressing disagreement with the continued denial of the claim. Moreover, the filing was received within the one-year appeal period for filing an appeal. Accordingly, the Board resolves all reasonable doubt in favor of the Veteran and finds that the letter received on May 25, 2010 constituted a valid notice of disagreement with the August 2009 denial of the claim. 38 C.F.R. §§ 20.201, 20.302. With this filing, the issue was placed into appellate status, 38 U.S.C. § 7105(a), and the Veteran was due a statement of the case (SOC). In a July 2010 rating decision, the RO declined to reopen the claim for a dental condition on the basis that new and material evidence was not submitted. Notice of the RO's decision was provided on July 12, 2009. The May 2010 correspondence from the Veteran was not discussed. As noted above, the RO did not construe the Veteran's filing in the same manner as the Board. Instead, the RO acted as if a new claim had been filed. A rating decision was issued in July 2010 and the Veteran timely appealed with an NOD that was received in September 2010. He submitted a premature VA Form 9 (substantive appeal) that was received in December 2010. In February 2012, the RO issued a SOC. This February 2012 SOC is the first SOC issued since, according to the Board's finding above, the claim was placed into appellate status. The SOC denied the claim and informed the Veteran of the 60-day period to file a substantive appeal to the Board. The Veteran did not file a substantive appeal during the 60-day period following the issuance of the February 2012 SOC. However, on April 23, 2012, within 60 days of the issuance of the SOC, the Veteran underwent VA treatment for this dental condition. The VA treatment record showed a diagnosis of TMJ. As, this evidence was not previously of record, it is considered new. As it provided a diagnosis of a compensable dental disability, directly addressing the reason for the denial of the claim in the original June 2003 denial on the merits, it is material. Thus, the Board finds that this VA treatment record constituted new and material evidence. 38 C.F.R. § 3.156(b). It is unclear whether this record was actually received on April 23, 2012 although it shows a printed dated of April 23, 2012. However, even if this VA treatment record was not yet associated with the claims file, it is a document that was clearly generated by VA, within the Secretary's control, and has a direct relationship to the Veteran's appeal. Thus, VA is deemed to have been in constructive possession of the record. Monzingo v. Shinseki, 26 Vet. App. 97, 101-02 (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). When new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. See 38 C.F.R. § 3.156 (b). That is, any interim submissions before finality attached to the July 2010 rating decision must be considered by VA as part of the pending appeal for the earlier claim for service connection for the dental condition. See Bond v. Shinseki, 659 F.3d 1362, 1366-68 (2011). In sum, VA was in constructive possession of new and material evidence prior to expiration of the 60-day appeal period following the issuance of the February 2012 SOC; thus, 38 C.F.R. § 3.156(b) is controlling and VA was required to consider this evidence as if it had been filed in connection with the original claim and issue a supplemental statement of the case (SSOC). 38 C.F.R. § 19.31(b); see Wilson v. Mansfield, 506 F.3d 1055, 1061-62 (Fed. Cir. 2007) (summarizing claimant's rights and VA's procedural process in the context of VA's duty to notify). Again, the RO did not construe the Veteran's filings as the Board has herein. Instead, the RO acted as if the prior appeal was final and a new claim to reopen had been filed on May 25, 2012. This resulted in the issuance of a July 2012 rating decision, which did consider the April 2012 VA treatment record in its denial. The Veteran appealed this decision within 60 days of notice of its issuance. An SOC was issued in February 2013, and the Veteran perfected his substantive appeal to the Board (via VA Form 9) the same month. The appeal was remanded by the Board in a November 2013 decision for additional development. In a December 2014 decision, the Board granted the claim. For the reasons set forth above, the Veteran filed a claim to reopen on March 11, 2009, it was denied in an August 2009 rating decision, it was placed into appellate status based on a March 25, 2010 notice of disagreement, and the appeal remained pending through the Board's December 2014 grant of the claim. Accordingly, the grant of service connection for TMJ dates back to the March 11, 2009 claim to reopen. The Board has considered whether an effective date prior to March 11, 2009 is warranted. As noted above, the Veteran did not appeal the April 1956 rating decision or submit new and material evidence within a year of notice of that decision. The Veteran next filed a claim in November 2002. This claim was denied in a June 2003 rating decision. The decision was appealed to the Board; however, in a June 2008 VA Form 21-4138 the Veteran withdrew the appeal. Per 38 C.F.R. § 20.204, the effect of such a filing is that it will be deemed that the notice of disagreement and substantive appeal had been withdrawn. On its face, this does not necessarily preclude 38 C.F.R. § 3.156(b) from keeping the original November 2002 claim pending if new and material evidence had been received within the one year appeal period from notice of the June 2003 rating decision. Within that year, the Veteran submitted new statements and medical records in support of his claim. These records were new because they were not previously before VA at the time of the prior denial. The statements generally indicated that the Veteran's service treatment records, which were already of record, documented the dental injuries. The medical records documented continued dental treatment. None of this evidence aided in identifying a compensable dental condition or, more generally, related to an unestablished fact necessary to prove the claim. Thus, the evidence was not material, and 38 C.F.R. § 3.156(b) did not act to keep the original claim pending. Accordingly, an effective date prior to March 11, 2009 for the award of service connection for TMJ is not warranted. In sum, there is a reasonable basis to find that an effective date of March 11, 2009, but no earlier, for the award of service connection for TMJ is warranted. All reasonable doubt was resolved in favor of the Veteran in reaching this determination. ORDER An effective date of March 11, 2009, but no earlier, for the award of service connection for TMJ is granted. REMAND The Veteran seeks an initial rating in excess of 30 percent for TMJ. Remand is required for a new VA examination and to obtain outstanding records. During the November 2017 Board hearing, the Veteran testified that his TMJ had worsened, as manifested by increased pain. Hr'g Tr. 9-10. Accordingly, on remand, the Veteran should be scheduled for a new VA examination to determine the current severity of this disability. 38 C.F.R. § 3.327(a); see Snuffer v. Gober, 10 Vet. App. 400 (1997). During the November 2017 Board hearing, the Veteran also testified that he receives dental treatment from Dr. G.F. It was agreed that the record would remain open for 30 days so that the Veteran could obtain and submit treatment records from Dr. F.; however, to date, such records have not been submitted. The record shows Veteran has also seen other non-VA dental treatment providers and their treatment records have not been obtained or associated with the claims file. This includes Dr. Markes of Verona in 1956; Dr. Brown of Verona in 1960; treatment at Clifton Dental Center in 1970; Dr. K.M. at Nutley Endodontics, LLC; Dr. L.E. at Clifton Endodontics; and Dr. Grober at Eastern Dental. The Veteran should be asked to identify all sources of non-VA treatment and provide, or authorize VA to obtain, all non-duplicative private treatment records, to include those by the service providers identified above. 38 C.F.R. § 3.159(c)(1). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain and associate with the claims file all outstanding VA treatment records. 2. Contact the Veteran and ask that he identify all sources of non-VA treatment and provide, or authorize VA to obtain, all non-duplicative private treatment records relating to his dental condition. 38 C.F.R. § 3.159(c)(1). This includes records from: (a) Dr. G.F. (refer to Board Hr'g Tr. 13) (b) Dr. Markes of Verona (refer to "Congressionals", VBMS receipt date 7/1/2015) (c) Dr. Brown of Verona (refer to "Congressionals", VBMS receipt date 7/1/2015) (d) Treatment at Clifton Dental Center (refer to "Congressionals", VBMS receipt date 7/1/2015) (e) Dr. K.M. of Nutley Endodontics, LLC (for address, refer to "Correspondence", VBMS receipt date 12/3/2010, business cards) (f) Dr. L.E. at Clifton Endodontics (for address, refer to "Third Party Correspondence", VBMS receipt date 1/11/2011, salutation at end of letter) (g) Dr. Grober at Eastern Dental (for address, refer to "Medical Treatment Record - Non-Government", VBMS receipt date 11/26/2003, business cards) All efforts to obtain identified records must be fully documented in the file. If such records are not found, the claims file must be clearly documented to that effect and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 3. Schedule the Veteran for a VA examination to determine the current severity of his TMJ. The examiner must review the entire claims file, to include a copy of this REMAND, in conjunction with the examination. 4.Finally, readjudicate the appeal. If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. ______________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs