Citation Nr: 20002971 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 11-12 931 DATE: January 14, 2020 REMANDED The appeal for a compensable initial rating prior to June 25, 2014, and a rating greater than 10 percent thereafter, for residuals of a traumatic brain injury (TBI), is remanded. The appeal for service connection for a temporomandibular joint (TMJ) disorder is remanded. REASONS FOR REMAND The Veteran had active service from October 1981 to April 1985. This appeal was adjudicated by the Board in August 2018 and the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In August 2019, the parties to the appeal (the Veteran, through his attorney, and a representative from VA General Counsel) filed a Joint Motion for Partial Remand (“Joint Motion”) of the Board’s decision. The Joint Motion was granted in August 2019. The parties asserted that the Board failed to provide an adequate statement of reasons and bases for its denial of service connection for a TMJ disability and higher ratings for service-connected residuals of TBI. The parties also reported that there were outstanding treatment records. Following review of the file, and in light of the points raised in the Joint Motion, the Board finds that a remand is necessary in this case. 1. Entitlement to a compensable rating before June 25, 2014, and a rating greater than 10 percent thereafter, for residuals of a TBI. The Veteran was provided with VA examinations pertinent to the TBI residuals, in October 2009 and May 2012. The Board notes that during the May 2012 VA examination, the Veteran reported having weekly headaches since his cerebral vascular accident (CVA) in September 2011. The May 2012 VA examiner noted that the Veteran’s headaches and associated dizziness were not related to the TBI but did not explain the basis for the determination. Subsequently, the agency of original jurisdiction (AOJ) characterized the Veteran’s disability as “TBI residuals with noncompensable recurrent headaches.” See December 2017 statement of the case. As the parties to the Joint Motion agreed that the Veteran’s TBI rating required consideration of the impact of the Veteran’s headache symptoms, and the AOJ has indicated that the service-connected disability includes headaches, clarification is required to determine the severity of any headaches resulting from TBI residuals. Further, subsequent to the issuance of the August 2018 Board decision, the Veteran was provided with a VA examination in November 2018 regarding the severity of his TBI. The examiner noted that the Veteran experienced headaches but did not address whether such headaches were related to the TBI or discuss the severity of the same. 2. Entitlement to service connection for a TMJ disorder. The Veteran’s claim for service connection for a TMJ disorder was denied by the AOJ and the Board for lack of a current diagnosis. Upon further review of the file and in light of points raised in the Joint Motion, the Board finds that a VA opinion is required to clarify whether the Veteran has a current TMJ disorder. In this regard, the September 2009 VA dental examination report noted that the Veteran did not have a TMJ disorder, but the October 2009 VA ear examination report noted that the Veteran experienced exquisite pain on the left TMJ when pressure was applied, and the examiner diagnosed a TMJ disorder. The October 2009 VA examiner did not offer an opinion as to any relationship between the TMJ and service. Given the conflicting reports, a VA opinion is required to address whether the TMJ disorder (or functional impairment resulting in pain) diagnosed in October 2009 is related to service. With respect to the claims for service connection for TMJ as well as the higher ratings for TBI, the parties to the Joint Motion asserted that there are outstanding VA treatment records from the Lake City VA Medical Center (VAMC) as well as the San Juan VAMC. See August 2019 Joint Motion. During the pendency of the appeal, outstanding VA treatment records from the San Juan VAMC and Orlando VAMC were associated with the file in December 2018 and September 2019; however, these records have not been reviewed by the AOJ in connection with the present claim and the Veteran has not waived review of the same. Further, as the parties to the Joint Motion reported that there were outstanding VA treatment records from the Lake City VAMC, a remand for any additional outstanding records is required. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records, to include records from the Lake City VA Medical Center as well as the San Juan VA Medical Center (if any). 2. Afford the Veteran a VA examination to evaluate the current severity of his service-connected TBI residuals. Following review of the entire electronic file, the examiner is asked to address the following: Specifically address the Veteran’s subjective complaints, including headaches. The examiner is asked to discuss the severity of any headaches resulting from TBI residuals. If the examiner determines that the Veteran’s headaches are a result of his stroke in 2011 and not related to the TBI residuals, please explain the basis for the determination. Consider the June 2018 Informal Hearing Presentation citing medical journal articles that indicate that a TBI increases the risk of stroke. 3. Schedule the Veteran for a VA examination to address whether he has a TMJ disorder related to service. Following review of the entire electronic file, and interview of the Veteran, the examiner is asked to address the following. (a.) Address whether the Veteran has a current TMJ disorder, or TMJ pain that results in functional impairment. If the examiner determines that the Veteran did not actually have TMJ or TMJ pain that caused functional impairment, at any point pertinent to the claim, the examiner should explain the basis for such determination, and reconcile it with a prior recognition of a TMJ disorder by an October 2009 VA ear disease examiner. (b.) Is it at least as likely as not (a 50 percent probability or higher) that the Veteran’s has a TMJ disability that had onset in, or is otherwise related to service? Consider the February 1985 treatment record that indicates the Veteran was admitted to the hospital for treatment of a right-side face trauma. The examiner is also advised that the Veteran is competent to report any injuries to the face and jaw during service even if treatment records are silent as to diagnoses. (c.) Complete rationale must be offered for any opinion rendered. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, readjudicate the Veteran’s claims based on the entirety of the evidence. If any claim remains denied, issue the Veteran and his representative a supplemental statement of the case. Allow an appropriate period of time for response. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Donna D. Ebaugh, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.