Citation Nr: 21070636 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 19-04 767 DATE: November 24, 2021 REMANDED Service connect for a jaw condition is remanded. Service connection for a temporomandibular joint (TMJ) disorder is remanded. REASONS FOR REMAND The Veteran had active service in the U.S. Army from May 1957 to August 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision. The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in May 2019. The appeal was then remanded for additional development in October 2019. In October 2020, the case returned to the Board, which denied a claim for a jaw condition. The Veteran appealed the case to the U.S. Court of Appeals for Veteran's Claims (Court). A Joint Motion for Remand sent the claim back to the Board. In the Joint Motion, the parties agreed that the medical evidence of record reasonably raised the issue of service connection for a TMJ disorder which the Board failed to address. For the reasons discussed below, the Board remands the case for further development. Jaw condition The Veteran contends that he has a jaw condition that is service connected. A January 2020 VA examiner stated that the Veteran's jaw condition was a congenital defect called skeletal malocclusion that the Veteran was likely born with. The examiner added that the Veteran's skeletal malocclusion progressed in a predictable manner. As the Court of Appeals for the Federal Circuit has recognized "a congenital or developmental condition that is progressive in naturethat can worsen over timeis a disease rather than a defect." O'Bryan v. McDonald, 771 F.3d 1376, 1380 (Fed. Cir. 2014); see also Quirin v. Shinseki, 22 Vet. App. 390, 395 (2009) ("any worsening--any change at all--might demonstrate that the condition is a disease, in that VA considers defects to be 'more or less' static and immutable"). The examiner's opinion may be inconsistent because legally "defect" and "disease" have two different meanings. See Jones v. Shinseki, 23 Vet. App. 382, 393 (2010) (finding that an internally inconsistent examination report "falls short of setting any clear conclusions, much less articulating a reasoned explanation"). TMJ disorder In the July 2018 VA examination, the examiner addressed the Veteran's jaw pain, diagnosing a "TMJ disorder." As previously noted, the Joint Motion for Remand maintained that the Board failed to adjudicate the reasonably raised issue of service connection for TMJ disorder. There is no medical opinion addressing whether the diagnosed TMJ disorder is related to service. The matters are REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records, should be obtained. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. 2. After obtaining any outstanding records, return the claims file, including a copy of this remand, to the January 2020 VA examiner for an addendum opinion. If the examiner who drafted the January 2020 VA opinion is unavailable, the opinion should be rendered by another appropriate medical professional. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The examiner is asked to furnish an opinion with respect to the following questions: a) Whether the Veteran's jaw disorder, constitutes a congenital or developmental defect or a congenital disease? (i) If the Veteran has a diagnosed jaw disorder that is considered a congenital defect, was there additional disability due to disease or injury superimposed upon such defect during any period of service? If so, please identify the additional disability. Specifically remark on whether the tooth pulled in service that otherwise did not need to be pulled, but not for an error on the part of the medical professional, contributed to any potential additional disability. (ii) If the examiner finds that the Veteran jaw disorder is a congenital disease, was it aggravated beyond the natural progression during any period of military service? Aggravation indicates a permanent worsening of the underlying condition as compared to a temporary increase in symptoms. Specifically remark on whether the tooth pulled in service that otherwise did not need to be pulled, but not for an error on the part of the medical professional, contributed to any aggravation. b) If the jaw disorder is not a congenital or developmental defect or a congenital disease, the examiner is asked to opine as to whether the Veteran clearly and unmistakably had a pre-existing jaw disorder before entering service. (i) If he did, is it more likely than not (50 percent or greater probability) that this pre-existing jaw disorder was aggravated during or by his service? (ii) If, conversely, it is determined that a jaw disorder did not pre-exist military service, is it at least as likely as not that any diagnosed jaw disorder had its onset during his service? c) Is the Veteran's diagnosed TMJ disorder a separate and distinct disability from the jaw condition addressed above. If a separate and distinct disability, is it at least as likely as not that the TMJ disorder is related to military service? Was caused or aggravated by the service-connected bottom right tooth extraction? (Continued on the next page) The rationale for all opinions must be provided. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Chalker, 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.