Citation Nr: 20028031 Decision Date: 04/21/20 Archive Date: 04/21/20 DOCKET NO. 15-41 215 DATE: April 21, 2020 REMANDED The appeal for entitlement to service connection for a back disability is remanded. The appeal for entitlement to service connection for peripheral neuropathy is remanded. The appeal for entitlement to service connection for sinusitis is remanded. The appeal for entitlement to service connection for arthritis of the jaw is remanded. The appeal for entitlement to service connection for temporomandibular joint syndrome (TMJ) is remanded. REASONS FOR REMAND The Veteran had active service from August 1963 to August 1966. His service treatment records show he was injured in a motor vehicle accident in January 1965. The Veteran believes that he incurred several chronic disabilities as a result of this accident, which are in addition to the disabilities for which service connection have already been established. The Veteran appeared at a videoconference hearing before the undersigned Veterans Law Judge in January 2019. A transcript is in the record. This matter was previously before the Board in February 2020, when it was remanded at the request of the Veteran in order to provide the Regional Office (RO) opportunity to consider and adjudicate additional evidence. This has been completed, and the matter has been returned to the Board for further appellate consideration. 1. The appeal for entitlement to service connection for a back disability. The Veteran contends that he has a chronic back disability as the result of his January 1965 accident. The Veteran has not been afforded a VA examination for his claimed back disability. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d) (2012); McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). The veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon, 20 Vet. App. at 83. The threshold for finding a link between current disability and service is low. Id. at 83. The service treatment records are negative for reports of an injury to the back at the time of the accident and are negative for complaints of back pain. However, the record shows that the Veteran has been treated for back pain at a VA facility for several years. A November 2019 VA treatment record says the Veteran has a history of chronic low back pain from degenerative disc disease from a motor vehicle accident. The Veteran testified that his back pain began not long after the in-service accident and has continued ever since. The Board finds that the criteria for an examination have been met. Therefore, the record should be forwarded to an examiner to obtain an opinion regarding the etiology of the Veteran’s back disability and, if necessary, to obtain the opinion, provide him an examination. 2. The appeal for entitlement to service connection for peripheral neuropathy. The Veteran contends that he has had peripheral neuropathy since the accident in service. He has not been provided an examination for this disability. VA treatment records show the Veteran has been diagnosed with neuropathy. In a January 2016 record, he states that he has had this since he was in his 20s. Once again, the Board finds that the McLendon standard has been met. The Board also observes that the Veteran’s most recent back diagnosis includes degenerative disc disease, which raises the possibility that the Veteran’s neurological complaints are due to his back disability, and that the adjudication of these two disabilities is inextricably intertwined. An opinion, and possibly an examination, should be obtained. 3. The appeal for entitlement to service connection for sinusitis is remanded. The Veteran was provided a VA examination of his sinusitis in August 2015. The examiner diagnosed chronic sinusitis and opined that it was less likely than not that the Veteran’s sinusitis was incurred secondary to his service-connected fracture of the maxilla, and a rationale was provided to support that opinion. However, the Veteran, in his November 2015 substantive appeal and at his hearing, contends that he has had his sinus problems ever since the accident in service. Unfortunately, the August 2015 examiner did not address the possibility of direct causation in his opinion. Therefore, an addendum opinion must be obtained that addresses this theory of entitlement. 4. The appeal for entitlement to service connection for arthritis of the jaw. 5. The appeal for entitlement to service connection for TMJ. The Veteran underwent a VA TMJ examination by a dentist in May 2015. A February 2015 X-ray study had identified mild bilateral temporomandibular degenerative joint disease. The examiner opined that the Veteran’s arthritis was less likely than not caused by his service-connected injury. The rationale was that there were no masticatory forces affecting the TMJ on the right side because the teeth had been extracted. However, the examiner did not address the possibility of direct causation of the arthritis in his opinion. The Board notes that the Veteran’s contentions were not limited to secondary service connection. In fact, it appears the Veteran contends his arthritis is the direct result of the trauma to the face that is documented in the treatment records. An additional opinion that addresses direct causation is required. The May 2015 examiner also determined that the Veteran did not have a current diagnosis of TMJ. His claim was denied on the basis that there is no current diagnosis. Since this examination, more recent VA treatment records such as an April 2016 entry include assessments of TMJ. A March 2016 record notes the Veteran’s frustration that he had been told by one dentist he has TMJ and by another that he does not. In addition, a private dentist wrote in a September 2015 letter that the Veteran has right side temporomandibular joint pain. The Veteran’s daughter, who he testified is a dental hygienist, also wrote to describe her father’s symptoms. Finally, the Veteran testified at the hearing that the May 2015 VA examiner had told him that he was not qualified to provide the opinion about TMJ that he had been requested to provide. The requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Given that the Veteran now has evidence that at least raises the possibility of a current diagnosis of TMJ, an additional opinion must be obtained from a medical professional with the expertise to opine about TMJ to address the etiology of this disability. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period from February 2020 to the Present. 2. Forward the Veteran’s claims file for a file review by an appropriate clinician to determine the nature and etiology of any back disability. A physical examination may be scheduled at the discretion of the examiner if deemed necessary to provide the requested opinions. After review of the claims file and the completion of any necessary examination, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the January 1965 motor vehicle accident. The examiner is to also address whether any back disability at least as likely as not (1) began during active service, (2) manifested within one year after the August 1966 discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. The examiner is to provide a comprehensive rationale for all opinions. Any negative opinion regarding the relationship of any current diagnosis to service cannot be based solely on the lack of evidence of a disability in the service treatment records. If the examiner is unable to provide an opinion without resorting to speculation, then state whether the inability is due to the limits of their knowledge, the limits of medical knowledge in general, or there is additional evidence that, if obtained, would permit the opinion to be provided.   2. Forward the Veteran’s claims file for a file review by an appropriate clinician to determine the nature and etiology of any peripheral neuropathy. A physical examination may be scheduled at the discretion of the examiner if deemed necessary to provide the requested opinions. After review of the claims file and the completion of any necessary examination, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the January 1965 motor vehicle accident. The examiner is to provide a comprehensive rationale for all opinions. Any negative opinion regarding the relationship of any current diagnosis to service cannot be based solely on the lack of evidence of a disability in the service treatment records. If the examiner is unable to provide an opinion without resorting to speculation, then state whether the inability is due to the limits of their knowledge, the limits of medical knowledge in general, or there is additional evidence that, if obtained, would permit the opinion to be provided. 3. Return the Veteran’s claims file to the August 2015 sinusitis examiner in order to obtain an addendum opinion. If this examiner is no longer available, the claims file is to be forwarded to an equally qualified examiner to obtain the opinion. Another physical examination may be scheduled at the discretion of the examiner if deemed necessary to provide the requested opinions. After review of the claims file and the completion of any necessary examination, the examiner must opine whether the Veteran’s sinusitis is at least as likely as not directly related to an in-service injury, event, or disease, including the January 1965 motor vehicle accident with trauma to face. The examiner is to provide a comprehensive rationale for all opinions. Any negative opinion regarding the relationship of any current diagnosis to service cannot be based solely on the lack of evidence of a disability in the service treatment records. If the examiner is unable to provide an opinion without resorting to speculation, then state whether the inability is due to the limits of their knowledge, the limits of medical knowledge in general, or there is additional evidence that, if obtained, would permit the opinion to be provided. 4. Forward the Veteran’s claims file for a file review by either an oral and maxillofacial specialist, an otolaryngologist, a prosthodontist, or other doctor with the expertise to provide opinions on diseases of the jaw such as TMJ and arthritis to determine the nature and etiology of these disabilities. A physical examination may be scheduled at the discretion of the examiner if deemed necessary to provide the requested opinions. After review of the claims file and the completion of any necessary examination, the examiner must opine whether 1) whether the Veteran’s current arthritis of the jaw is at least as likely as not directly related to an in-service injury, event, or disease, including the January 1965 motor vehicle accident (see e.g., 10/17/1966 STR – Medical, at 18); 2) whether the Veteran has a current diagnosis of TMJ (please explain why or why not, to include consideration of the evidence noted below)), and 3) if there is a current diagnosis of TMJ, is it at least as likely as not related to an in-service injury, event, or disease, including the January 1965 motor vehicle accident. The examiner is to provide a comprehensive rationale for all opinions. Any negative opinion regarding the relationship of any current diagnosis to service cannot be based solely on the lack of evidence of a disability in the service treatment records. If the examiner finds the Veteran does not have a current diagnosis of TMJ, the April 2016 VA assessment of TMJ must be addressed, as well as the September 2015 letter from the Veteran’s private dentist and statements from his dental hygienists, including his daughter. The examiner should state whether these previous assessments were in error and, if not, whether they were as likely as not the result of active service, including the January 1965 in-service injury. The clinician is to provide a comprehensive rationale for all expressed opinions. If the examiner is unable to provide an opinion without resorting to speculation, then state whether the inability is due to the limits of their knowledge, the limits of medical knowledge in general, or there is additional evidence that, if obtained, would permit the opinion to be provided. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board John L. Prichard 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.