Citation Nr: 20026023 Decision Date: 04/15/20 Archive Date: 04/15/20 DOCKET NO. 14-42 286 DATE: April 15, 2020 ORDER New and material evidence having been received, the petition to reopen the claim for entitlement to service connection for a jaw condition (claimed as status post maxillary surgery) is granted. REMANDED Entitlement to service connection for a jaw condition (claimed as status post maxillary surgery) is remanded. Entitlement to an initial increased rating in excess of 10 percent for a left shoulder disability is remanded. FINDINGS OF FACT 1. The claim for entitlement to service connection for a jaw condition (claimed as status post maxillary surgery) was denied in a December 1990 rating decision. 2. The Veteran did not submit new and material evidence, nor otherwise file an appeal during the allowed one-year appellate period following the December 1990 rating decision and that decision became final. 3. Since the December 1990 rating decision, new and material evidence has been received for the claim of entitlement to service connection for a jaw condition (claimed as status post maxillary surgery). CONCLUSIONS OF LAW New and material evidence has been received and the claim seeking service connection for a jaw condition (claimed as status post maxillary surgery) is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1987 to April 1989 and from September 1991 to January 1992, November 2008 to October 2011 and February 2015 to March 2018. This appeal comes before the Board of Veterans’ Appeals (Board) from a June 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is available in the record. 1. New and material evidence having been received, the petition to reopen the claim for entitlement to service connection for a jaw condition (claimed as status post maxillary surgery) is granted. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The RO denied the Veteran’s claim of service connection for a jaw condition (claimed as status post maxillary surgery) in a December 1990 rating decision. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the December 1990 rating decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103. The Veteran filed a claim to reopen the previous denial, and it was denied in June 2003. This decision did not become final because the Veteran’s service treatment records were not available for review at the time of the denial despite being in VA possession. See 38 C.F.R. § 3.156(c). The Board finds new and material evidence has been submitted since the December 1990 final rating decision. See 38 C.F.R. § 3.156. For example, the Veteran gave lay testimony at the August 2018 Board Hearing. See August 2018 Board Hearing Transcript. This new evidence raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. REASONS FOR REMAND 1. Entitlement to service connection for a jaw condition (claimed as status post maxillary surgery) is remanded. The Veteran contends he is entitled to service connection for a jaw condition (claimed as status post maxillary surgery). The Veteran underwent a VA examination in October 2014. The examiner diagnosed the Veteran with loss of teeth (for reasons other than periodontal disease); anatomical loss or injury to mouth, lips, or tongue; temporomandibular joint disease (TMJ); and status post maxillary surgery. See October 2014 VA Examination. The examination form indicated that if the examiner diagnosed the Veteran with TMJ, he should complete an additional TMJ questionnaire. In the additional TMJ questionnaire, the examiner indicated the Veteran described the onset of the TMJ as 1987 when the Veteran was hit in the face with a rifle resulting in broken teeth and jaw surgery. Service treatment records (STRs) corroborate that this incident occurred. See July 1987 STRs. However, the examiner did not provide an etiology opinion for the TMJ diagnosis. The examiner only provided an opinion as to whether the Veteran’s residuals of status post maxillary surgery are at least as likely as not related to service. He opined that although the Veteran’s claims file documents a dental injury sustained in 1987 which lead to the ultimate removal of tooth #22, there is no objective medical evidence noted to connect the injury to the 1999 maxillary surgery which occurred between active duty dates; therefore a nexus cannot be established. This opinion is not adequate for adjudicatory purposes as the examiner did not address the Veteran’s lay statements regarding the continued treatment he has received for his condition since the 1987 in-service incident. See October 2012 Correspondence from the Veteran. Once VA undertakes the effort to provide an examination for a service connection claim, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, given the deficiencies described above in the VA medical opinion, the Board finds that a new medical opinion with an adequate supporting rationale is required to decide this Veteran’s claim. As such, a remand is warranted for an addendum opinion addressing the TMJ diagnosis as well as the lay statements by the Veteran. 2. Entitlement to an initial increased rating in excess of 10 percent for a left shoulder disability is remanded. The Veteran contends that his left shoulder disability is entitled to a rating in excess of 10 percent. The Veteran underwent a VA examination in April 2018 for his right shoulder, though the examiner evaluated the left as well. The examiner did not diagnose any left shoulder conditions nor mention the previously noted arthritis of the left shoulder. Thus, the Board finds this examination inadequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Further, the Veteran has contended that his left shoulder disability is worse than the April examination shows. See August 2018 Board Hearing Transcript. Accordingly, on remand, the Veteran should be scheduled for a new VA examination to determine the current severity of his left shoulder disability. 38 C.F.R. § 3.327 (a); see Snuffer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the October 2014 examiner with regard to the claimed jaw condition (or another examiner if the October 2014 examiner is unavailable). (a.) The examiner is asked to clarify the diagnosis of anatomical loss or injury to mouth, lips, or tongue listed in the October 2014 VA Examination and specify the diagnosed condition or conditions related to the reference anatomical loss. (b.) For each diagnosis rendered regarding the anatomical loss, as well for the diagnosed TMJ, provide an opinion as to whether is at least as likely as not that any of these diagnoses are related to, or had their onset in service to include the 1987 incident in which the Veteran was hit in the mouth/jaw in service. The examiner must address the lay statements by the Veteran that he has continued to have difficulties with his mouth/jaw since service as a result of the 1987 in-service injury. See October 2012 Correspondence from the Veteran. The examiner should also clarify in the opinion the dental treatment the Veteran received as a result of the 1987 in-service incident, to the extent possible. The examiner’s attention is invited to the July 1987 service treatment record noting the Veteran’s in-service injury, December 2013 VA Form 21-4142, October 2002 VA Form 21-4138 Statement in Support of Claim, and August 2011 treatment record from G.W., DDS. (Continued on the next page)   2. Schedule the Veteran for an examination of the current severity of his left shoulder disability. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the left shoulder disability alone and discuss the effect of the Veteran’s left shoulder disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). K. J. Alibrando Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Holcombe, Associate 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.