Citation Nr: 20042612 Decision Date: 06/24/20 Archive Date: 06/24/20 DOCKET NO. 12-34 256 DATE: June 24, 2020 ORDER Service connection for bruxism is granted. REMANDED Entitlement to service connection for a right big toe disability is remanded. Entitlement to an initial compensable rating for traumatic brain injury (TBI) residuals is remanded. Entitlement to an initial compensable rating for right shoulder tendinosis/bursitis is remanded. Entitlement to an initial compensable rating (prior to February 21, 2020) and an initial rating in excess of 10 percent (from February 21, 2020) for left knee chondromalacia patella/tendinosis with limitation of motion is remanded. Entitlement to an initial compensable rating (prior to February 21, 2020) and an initial rating in excess of 10 percent (from February 21, 2020) for right knee chondromalacia patella/tendinosis with limitation of motion is remanded. Entitlement to an initial compensable rating for bilateral macular degeneration and diplopia is remanded. Entitlement to an initial rating in excess of 10 percent for right ankle tendinosis with limitation of motion is remanded. Entitlement to an initial rating in excess of 20 percent for cervical spine strain is remanded. Entitlement to an initial rating in excess of 20 percent for lumbosacral strain and scoliosis with degenerative changes is remanded. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU rating) is remanded. FINDING OF FACT The Veteran’s bruxism is proximately due to his service-connected PTSD, TBI residuals, and bilateral chronic myogenic temporomandibular joint (TMJ) disorder. CONCLUSION OF LAW Service connection for bruxism is warranted. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 2003 to November 2008. In March 2015, the Board issued a decision by another Veterans Law Judge that denied an initial compensable rating for TBI residuals; denied an initial compensable rating for right shoulder tendinosis/bursitis; denied an initial compensable rating for left knee chondromalacia patella/tendinosis; denied an initial compensable rating for right knee chondromalacia patella/tendinosis; granted an initial rating of 10 percent (effective November 3, 2010, the date of the Veteran’s service connection claim for such disability) but no higher for bilateral macular degeneration and diplopia; granted an initial rating of 10 percent (effective November 3, 2010, the date of the Veteran’s service connection claim for such disability) but no higher for right ankle tendinosis; granted an initial rating of 20 percent (effective November 3, 2010, the date of the Veteran’s service connection claim for such disability) but no higher for cervical spine strain; granted an initial rating of 20 percent (effective November 3, 2010, the date of the Veteran’s service connection claim for such disability) but no higher for lumbosacral strain and scoliosis with degenerative changes; denied an initial rating in excess of 50 percent for PTSD; granted service connection for bilateral chronic myogenic TMJ disorder; and also remanded for additional development the issues of entitlement to service connection for bruxism, entitlement to service connection for a right big toe disability, and entitlement to a TDIU rating. The aforementioned awards granted by the Board in its March 2015 decision have not yet been implemented by the Agency of Original Jurisdiction (AOJ) in a rating decision, and such action must be taken immediately (as outlined in the Remand Directives below). The Veteran appealed the portions of the Board’s March 2015 decision which denied higher initial ratings for TBI residuals (in excess of 0 percent), for right shoulder tendinosis/bursitis (in excess of 0 percent), for left knee chondromalacia patella/tendinosis (in excess of 0 percent), for right knee chondromalacia patella/tendinosis (in excess of 0 percent), for bilateral macular degeneration and diplopia (in excess of 10 percent), for right ankle tendinosis (in excess of 10 percent), for cervical spine strain (in excess of 20 percent), for lumbosacral strain and scoliosis with degenerative changes (in excess of 20 percent), and for PTSD (in excess of 50 percent) to the United States Court of Appeals for Veterans Claims (Court).   In March 2016, the Court issued an Order that vacated the March 2015 Board decision with regard to those nine issues and remanded those matters for readjudication consistent with instructions outlined in a March 2016 Joint Motion for Partial Remand by the parties. In May 2016 and in November 2017, the case was remanded by other Veterans Law Judges for additional development. The case has now been assigned to the undersigned Veterans Law Judge. Entitlement to service connection for bruxism. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability that is proximately due to, or the result of, or aggravated by a service-connected disease or injury. Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) an already service-connected disability; and (3) that the current disability was either caused or aggravated by the already service-connected disability. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran contends that he currently has bruxism which is related to his military service and/or is secondary to his service-connected PTSD, TBI residuals, and bilateral chronic myogenic TMJ disorder. The medical evidence of record, including a March 2020 VA jaw examination report, shows that the Veteran has a current diagnosis of bruxism. At the Veteran’s March 2020 VA jaw examination, the examiner opined: “There is a diagnosis of bruxism and the most likely etiology is stress and jaw pain.” In an April 2020 addendum, the examiner opined that the Veteran’s bruxism was less likely than not (less than 50 percent probability) incurred in or caused by any incident of his military service, with the following rationale: “It is likely that [t]he symptoms of bruxism started within 2007 during active service, but the condition is more likely secondary to service connected [] TBI with PTSD, and the stress and jaw pain.” In a second April 2020 addendum, the examiner opined that the Veteran’s bruxism was at least as likely as not (50 percent or greater probability) proximately due to or the result of the Veteran’s service-connected PTSD, TBI residuals, and bilateral chronic myogenic TMJ disorder, with the following rationale: “The claim[ed] condition of bruxism is at least as likely secondary to the PTSD and TMJ conditions. The conditions of PTSD, TMJ[,] and TBI are already service related conditions. The claimant suffered traumatic brain injury in 2004. In 2007 the claimant had jaw pain and headaches in which symptoms reoccurred and got[] worse. The claimant has anxiety which is a symptom[] of the service connected [disability] of PTSD. It is at least as likely as not that the condition of bruxism is secondary and due to all service connected [disabilities] listed.” The Board finds that the favorable medical opinion provided by the March 2020 VA examiner in the second April 2020 addendum opinion, indicating that the Veteran’s bruxism is proximately due to his service-connected PTSD, TBI residuals, and bilateral chronic myogenic TMJ disorder, is supported by an adequate rationale for the conclusion reached, as this rationale took into account the pertinent medical evidence of record. Therefore, the Board affords the opinion substantial weight of probative value. In light of the foregoing, and after resolving all doubt in the Veteran’s favor, the Board concludes that service connection for bruxism is warranted on a secondary basis. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.303(a), 3.310(a). REASONS FOR REMAND As an initial matter, the Board notes that there are outstanding treatment records not currently associated with the claims file that may be pertinent to the Veteran’s claims on appeal. Specifically, VA treatment records have documented that the Veteran was approved for non-VA treatment through the Veterans Choice Program for Chiropractic care (including in August 2016 for sciatica/spine pain and in February 2019 for low back pain) and for Optometry care (including in March 2017 and in February 2020). In addition, the aforementioned February 2019 VA treatment record noted that he had a Choice appointment scheduled on February 27, 2019 with a chiropractor (A. LaBella, DC), and a March 2019 VA treatment record noted that a Community Care Consult report dated on March 13, 2019 was scanned into VistA Imaging; however, this report is not currently viewable in the claims file. Furthermore, VA treatment records have documented that he was treated in the emergency room of the Indian River Medical Center on multiple occasions, including in September 2017 (for “Unknown” condition), in March 2018 (for “Pain”), and in August 2018 (for “SOB [shortness of breath]”); however, there are no treatment records from this private facility currently in the claims file. Finally, VA treatment records have documented that he received treatment at CareSpot Urgent Care in July 2019 for neck pain after falling from a tree, and x-rays were taken and an MRI of his scapula was recommended; however, there are no treatment records from this private facility currently in the claims file. 1. Entitlement to service connection for a right big toe disability. The Veteran contends that he currently has a right big toe disability which began during his active service and has continued to the present. The Veteran’s service treatment records (STRs) documented that he complained in July 2004 of pain in both feet for three months, with pain at the mid foot which was worse when walking, and he was assessed with chronic bilateral foot pain. The evidence of record verifies that the Veteran engaged in combat with the enemy as his DD Form 214 reflects that he received the Combat Action Badge. Additionally, the evidence of record, including the Veteran’s DD Form 214, documents that he served in Iraq during his active duty service. Therefore, his service in the Southwest Asia theater of operations has also been verified. See 38 C.F.R. § 3.317(e)(2).   Post-service, at a February 2020 VA foot examination, the Veteran was diagnosed with right foot strain, with a date of diagnosis noted to be 2004. He reported that during exposure to multiple explosions in service, he had noted pain in his right foot in 2006, and he currently complained of continued discomfort and pain with prolonged standing or walking. In a March 2020 addendum, the examiner opined that the Veteran’s right foot strain was less likely than not (less than 50 percent probability) incurred in or caused by any incident of his military service, with the following rationale: “SMR [service medical record] review showed that he was evaluated for bilateral foot pain in 2004. No further evaluation or symptoms or treatment regarding foot pain. A progress report dated March 1, 2017 showed a sustaining injury to the foot when he dropped some heavy objects. Therefore his condition is less likely incurred in the service.” However, this rationale did not take into account the Veteran’s verified combat service or his allegations of continuity of symptoms since his service. On remand, after all outstanding treatment records have been associated with the claims file, an addendum medical opinion with supportive rationale should be obtained in order to adequately address the theory of direct service connection for the Veteran’s claimed right big toe disability, as well as whether the Veteran has had any joint pain in his right big toe during the pendency of the appeal period not associated with a diagnosis which represents an undiagnosed illness (where signs or symptoms cannot be attributed to known medical diagnoses) or a medically unexplained chronic multisymptom illness related to his verified service in the Southwest Asia theater of operations.   2. Entitlement to an initial compensable rating for TBI residuals. 3. Entitlement to an initial compensable rating for right shoulder tendinosis/bursitis. 4. Entitlement to an initial compensable rating (prior to February 21, 2020) and an initial rating in excess of 10 percent (from February 21, 2020) for left knee chondromalacia patella/tendinosis with limitation of motion. 5. Entitlement to an initial compensable rating (prior to February 21, 2020) and an initial rating in excess of 10 percent (from February 21, 2020) for right knee chondromalacia patella/tendinosis with limitation of motion. 6. Entitlement to an initial rating in excess of 10 percent for bilateral macular degeneration and diplopia. 7. Entitlement to an initial rating in excess of 10 percent for right ankle tendinosis with limitation of motion. 8. Entitlement to an initial rating in excess of 20 percent for cervical spine strain. 9. Entitlement to an initial rating in excess of 20 percent for lumbosacral strain and scoliosis with degenerative changes. 10. Entitlement to an initial rating in excess of 50 percent for PTSD. The Veteran contends that he is entitled to higher initial ratings for TBI residuals, for right shoulder tendinosis/bursitis, for left knee chondromalacia patella/tendinosis with limitation of motion, for right knee chondromalacia patella/tendinosis with limitation of motion, for bilateral macular degeneration and diplopia, for right ankle tendinosis with limitation of motion, for cervical spine strain, for lumbosacral strain and scoliosis with degenerative changes, and for PTSD.   During the pendency of the instant appeal, an April 2020 rating decision granted increased ratings for left knee chondromalacia patella/tendinosis with limitation of motion (to 10 percent, effective February 21, 2020, the date of a VA knee examination) and for right knee chondromalacia patella/tendinosis with limitation of motion (to 10 percent, effective February 21, 2020, the date of a VA knee examination). Because these awards do not represent a total grant of benefits sought on appeal for the claimed disabilities, the claims for increase remain before the Board. AB v. Brown, 6 Vet. App. 35 (1993). As indicated above, the Board cannot make a fully-informed decision on these issues at this time because the record reflects that there are outstanding treatment records not currently associated with the claims file that may be pertinent to the Veteran’s claims on appeal which are being remanded, including from Choice-authorized treatment providers, Indian River Medical Center, and CareSpot Urgent Care. On remand, all outstanding treatment records must be associated with the claims file. 11. Entitlement to a TDIU rating. During the course of the current appeal, including in a January 2012 written submission, the Veteran has raised the issue of entitlement to a TDIU rating in the context of his increased rating claims which are currently on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). On remand, the Veteran should once again be asked to complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Individual Unemployability. Thereafter, after all outstanding treatment records have been associated with the claims file and after all necessary and requested development has been completed, the claim for a TDIU rating should be readjudicated after the readjudication of the other issues on appeal.   The matters are REMANDED for the following actions: 1. Immediately implement in a rating decision the awards granted by the Board in its March 2015 decision, as follows: • A 10 percent rating for bilateral macular degeneration and diplopia, effective November 3, 2010; • A 10 percent rating for right ankle tendinosis, effective November 3, 2010; • A 20 percent rating for cervical spine strain, effective November 3, 2010; • A 20 percent rating for lumbosacral strain and scoliosis with degenerative changes, effective November 3, 2010; and • Service connection for bilateral chronic myogenic TMJ disorder. 2. Ask the Veteran to complete and submit a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Individual Unemployability. 3. Ask the Veteran to complete a VA Form 21-4142 for all private providers who have treated him for his claimed disabilities remaining on appeal at any time during the appeal period, including from all Choice-authorized treatment providers, Indian River Medical Center, and CareSpot Urgent Care. Make two requests for the authorized records from each identified provider, unless it is clear after the first request that a second request would be futile. 4. Obtain the Veteran’s VA treatment records for the period from April 2020 to the present, as well as a viewable copy of the Community Care Consult report dated on March 13, 2019 which was scanned into VistA Imaging (as noted in a March 2019 VA treatment record). Any negative search result should be noted in the record and communicated to the Veteran. 5. After all requested records have been associated with the claims file, obtain an addendum opinion from an appropriate clinician, after review of the electronic claims file, as to the following questions: (a.) The clinician must first identify all valid diagnoses of any right big toe disability present at any time during the pendency of the appeal period, taking into account the diagnoses (including right foot strain) that have already been documented during the appeal period (as outlined above). (b.) Next, for each such disability that is diagnosed, the examiner must provide an opinion as to whether it is at least as likely as not that such disability began during the Veteran’s active service (or within one year of service discharge), or is otherwise related to any incident of his military service (with specific consideration given to all pertinent STRs, his verified combat service, and his allegations of continuity of symptomatology since service). (c.) Finally, for any manifestations that are not associated with a diagnosis, the examiner must provide an opinion as to whether such manifestations represent an undiagnosed illness (where signs or symptoms cannot be attributed to known medical diagnoses) or a medically unexplained chronic multisymptom illness related to the Veteran’s verified service in the Southwest Asia theater of operations. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular clinician. 6. Thereafter, review the record, ensure that all development is completed (and arrange for any further development suggested by additional evidence received), and readjudicate the claim on appeal for entitlement to service connection for a right big toe disability, as well as the claims on appeal for higher initial ratings for TBI residuals, for right shoulder tendinosis/bursitis, for left knee chondromalacia patella/tendinosis with limitation of motion, for right knee chondromalacia patella/tendinosis with limitation of motion, for bilateral macular degeneration and diplopia (with consideration of all applicable eye rating criteria during the appeal period), for right ankle tendinosis with limitation of motion, for cervical spine strain, for lumbosacral strain and scoliosis with degenerative changes, and for PTSD – followed by readjudication of the issue of entitlement to a TDIU rating (in light of the outcome of the other claims on appeal and after implementation of the award of service connection granted in the above decision, and with consideration of whether referral of an extraschedular TDIU rating under § 4.16(b) is warranted for any period that the schedular TDIU criteria under § 4.16(a) are not met). If any benefit sought on appeal remains denied, in whole or in part, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. B. Yantz, 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.