Citation Nr: 21008549 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 15-11 394 DATE: February 17, 2021 REMANDED Entitlement to service connection for temporomandibular jaw (TMJ) disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from September 1987 to September 1991. In January 209 the Board issued a decision denying the claim of entitlement to service connection for TMJ. The Veteran appealed that decision to the Court of Appeals of Veterans Claims (Court) and in an order dated March 2020, the Court set asides the Board’s denial for entitlement to service connection for TMJ and issued a joint motion remand (JMR) for further development and readjudication. Pursuant to the JMR, the Board remanded this case in August 2020 for further development. 1. Entitlement to service connection for TMJ The Veteran underwent a VA examination in November 2020. The examiner opined that TMJ is less likely than not due to his in-service injury as there is no trauma to the jaw, no documentation of trauma or fracture and no complaint of pain to jaw following injury or thereafter. Thus, based on the lack of evidence in the service records, continuing treatments, or diagnoses, TMJ was not incurred in or caused by service. The examiner noted the most common causes of TMJ are types of arthritis, jaw injury, long term grinding or clenching of teeth and certain connective tissue diseases and stated that despite conflicting story, perception or interpretation of story there is not medical documentation of an injury that would cause TMJ. The examiner stated that there is history of trauma to the head but not to the jaw and complaints raised over 20 years later were based on the Veteran’s statements and not documented facts. The Board finds this opinion inadequate for adjudication. The August 2020 remand directed the examiner to consider and reconcile the negative medical opinions provided by the VA examiners with the positive medical opinions submitted by private providers Dr. C.J., Dr. V.C., and Dr. M.C. as well as the competent lay statements made by the Veteran on the history of his injury and symptoms. The examiner failed to do this as he merely dismissed the conflicting medical opinions and lay evidence. Stegall v. West, 11 Vet. App. 268, 271 (1998). Rather the examiner relied upon the lack of contemporaneous records to support the negative opinion. See Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015) (indicating that a VA examiner may not generally rely on the absence of evidence as negative evidence). Therefore, a remand is necessary for a medical opinion that addresses both the lay evidence and conflicting medical opinions and provides a reasoned medical explanation. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The matters are REMANDED for the following action: 1. Ensure that the Veteran’s complete service treatment records are associated with the file. All attempts to secure this evidence must be documented in the claims file. If, after making reasonable efforts, the records cannot be obtained, notify the Veteran and his representative and (a) identify the specific records that cannot be obtained; (b) briefly explain the efforts made to obtain those records; and (c) describe any further action to be taken with respect to the claim. The Veteran must then be given an opportunity to respond. Requests for the records must continue until it is reasonably certain that further attempts would be futile. If the records are unavailable, the AOJ should associate a memorandum of unavailability with the claims file and notify the Veteran and his representative pursuant to the procedures outlined in 38 C.F.R. § 3.159(e). 2. Obtain an addendum medical opinion from a medical professional with appropriate expertise. The examiner should review the Veteran’s claims file. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one. Based on a review of the record, and a new examination if necessary, the examiner must address the following: (a.) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s TMJ is related to his active service, or is caused by or aggravated by military service, to include due to his closed head trauma. The examiner must consider and address the following: 1) the Veteran’s statements that when he incurred his head trauma he was struck in the jaw, which resulted in swelling and continued symptoms ever since See Correspondence January 2021; and 2) the conflicting medical opinions consisting of negative medical opinions by the July 2017 VA examiner and April 2018 addendum opinion; and positive private medical opinions by Dr. C.J. in June 2017 and September 2017, by Dr. V.C. in August 2018, and by Dr. M.C. in August 2018. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In all opinions rendered, the examiner is advised that the Veteran is competent to report his symptoms and treatment history. The examiner must specifically consider and discuss the lay statements of record, regarding his continuity of symptomology since service and the opinion and rationale should reflect such consideration. If there is a medical basis to support or doubt the history provided, the examiner should provide a fully reasoned explanation. A complete rationale containing clear conclusions with supporting data and a reasoned medical explanation connecting the two is required for all medical opinions. The examiner should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Finally, readjudicate the appeal. If the service connection sought for TMJ remains denied, issue a supplemental statement of the case and return the case to the Board. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. A. Prinsen 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.