Citation Nr: 21076715 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 08-27 501 DATE: December 27, 2021 REMANDED The claim of entitlement to a dental disorder, to include temporomandibular (TMJ) and bruxism, is remanded. The claim of entitlement to a total disability rating based on individual unemployability (TDIU) prior to April 17, 2018, is remanded. REASONS FOR REMAND The Veteran had honorable active duty service with the United States Army from June 2004 to September 2006. In an August 2020 decision, the Board denied the claims on appeal. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a Joint Motion for Remand (JMR) the parties agreed to vacate the Board's August 2020 decision and remanded the case to the Board for action consistent with JMR. The JMR was incorporated by reference in a Court order dated in September 2021. 1. The claim of entitlement to a dental disorder, to include TMJ and bruxism, is remanded. In the JMR, the parties agreed that the Board failed to obtain an adequate VA examination. Specifically, the June 2019 VA examiner failed to consider the Veteran's lay statements of teeth grinding since service. See Miller v. Wilkie, 32 Vet. App. 249, 258 (2020) (holding that "The examiner must address the veteran's lay statements to provide the Board with an adequate medical opinion."). The parties also agreed that the June 2019 VA medical opinion is inadequate because the examiner relied on the absence of evidence in concluding that there was no in-service injury or condition. See Buchanon v. Nicholson, 451 F.3d 1331, 1336, 1337 (Fed. Cir. 2006) (holding that the Board may not rely on a medical opinion in which it is determined that a Veteran's lay statements lack credibility solely because they are not corroborated by contemporaneous medical records). Accordingly, a remand is required to obtain another VA examination. In addition, the Board notes that October 2005 service dental records showed that the Veteran chewed one can of tobacco per day for 10 years. On physical examination, he was found to have tobacco pouch keratosis on the right side. A September 2019 private dental record noted the Veteran's report of right-side tenderness to TMJ palpation and stretching. He stated that the right side of his jaw sometimes locked shut and he had to use his hand to open it. This mostly occurred when he has been grinding his teeth all night and he woke up feeling like he chewed gum all night long. The dentist noted soreness on the right TMJ on opening. Generally, service connection cannot be established for a disability that is attributed to tobacco use during service. 38 C.F.R. § 3.300 (a). Service connection is not prohibited, however, if the disability resulted from a disease that can be service connected on some basis other than the use of tobacco products during service, or if the disability became manifest during service, or to the required degree of disability within any applicable presumptive period. 38 C.F.R. § 3.300 (b)(1). Therefore, the VA examiner should consider the Veteran's use of smokeless tobacco when rendering the medical opinion. 2. The claim of entitlement to a TDIU prior to April 17, 2018, is remanded. The issue of entitlement to a TDIU is intertwined with the issue remanded herein. Harris v. Derwinski, 1 Vet. App. 180 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). Therefore, further consideration of the claim of entitlement to a TDIU must be deferred. The matters are REMANDED for the following action: 1. The AOJ should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims. If any requested records are not available, the record should be annotated to reflect such, and the Veteran notified in accordance with 38 C.F.R. § § 3.159 (e). 2. Thereafter, the AOJ should afford the Veteran a VA examination by a physician with sufficient expertise, to determine the nature and etiology of the Veteran's dental disorder, to include TMJ and bruxism. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be accomplished. Following an examination of the Veteran, and a thorough review of the record, the appropriate examiner should state an opinion as to whether there is a 50 percent probability that the disorder became manifest during service or is otherwise related to the Veteran's active duty service. Consideration should be given to the Veteran's use of smokeless tobacco. In rendering the opinion, the examiner should also consider and discuss the following: (1) the October 2005 service dental record noting tobacco pouch keratosis; (2) the November 2006 service treatment record noting a possible night guard for treatment of grinding/clenching teeth; (3) that in January 2007, less than 4 months after service separation, the Veteran was given a night guard to treat his grinding and clenching symptoms; and (4) the Veteran's lay statements of teeth grinding, jaw popping, and soreness since service. 3. Then, the AOJ should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Nolley, Amber 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.