Citation Nr: 21010726 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 15-10 831 DATE: February 25, 2021 REMANDED Entitlement to a separate compensable rating prior to January 23, 2018, and in excess of 10 percent thereafter for temporomandibular joint dysfunction (TMJ) is remanded. Entitlement to service connection for chronic chest pain is remanded. Entitlement to service connection for a bilateral elbow disability is remanded. Entitlement to service connection for a bilateral ankle disability is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1991 to May 1991 and from November 2000 to September 2011, including service in Southwest Asia. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which, inter alia, granted service connection for an oral facial injury with loss of teeth and assigned a 30 percent rating, effective October 1, 2011, and denied service connection for chronic chest pain and bilateral elbow and ankle disabilities. The Veteran was scheduled to appear in Washington, D.C. for a personal hearing before a Veterans Law Judge; however, he withdrew his request for a hearing pursuant to 38 C.F.R. § 20.704(e). This matter was previously before the Board in May 2017. At that time, the Board, inter alia, remanded the Veteran’s increased rating claim for an oral facial injury, to include a determination as to whether an additional rating was warranted under Diagnostic Code 9905 for TMJ, as well as his service connection claims for chronic chest pain and bilateral elbow and ankle disabilities for further evidentiary development. The Board notes that in a February 2018 rating decision, the RO granted service connection for TMJ and assigned a 10 percent rating, effective January 23, 2018. Although a separate rating was granted for TMJ, the issue remains in appellate status, as the maximum schedular rating was not assigned for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In a December 2018 Board decision, the Board, inter alia, denied the Veteran’s increased rating claim for an oral facial injury with loss of teeth and his service connection claims for chronic chest pain and bilateral elbow and ankle disabilities. The Veteran appealed the December 2018 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2020 Memorandum Decision, the Court vacated the portions of the Board’s December 2018 decision denying service connection for chronic chest pain and bilateral elbow and ankle disabilities and remanded the matters for proceedings consistent with the Court’s decision. In addition, the Court determined that the Board erred in failing to address the Veteran’s symptoms of TMJ in its decision, as the matter had previously been remanded as part of a claim for an increased rating for the Veteran’s oral facial condition. 1. Entitlement to a separate compensable rating prior to January 23, 2018, and in excess of 10 percent thereafter for TMJ is remanded. The Veteran contends that he is entitled to compensation for his jaw symptoms associated with his oral facial injury from October 1, 2011. Additionally, the Veteran contends that his TMJ is more severe than the currently assigned 10 percent rating. See Appellant’s Brief, pages 12-16. In December 2013 correspondence, the Veteran indicated that he experienced spasms and locking in his jaw. See December 2013 Notice of Disagreement (NOD). The Veteran was most recently afforded a VA examination in January 2018. The examiner noted a 2003 diagnosis of TMJ. The Veteran reported that he began to experience pain in his temporomandibular joints in 2003 while he was undergoing extensive dental treatment. He reported that his jaw sometimes “lock[ed] open” when he yawned. On physical examination, initial range of motion (ROM) for opening the mouth, measured by inter-incisal distance, was 30 to 34 mm. Right lateral excursion was greater than 4 mm. Pain was noted on examination but was not found to result in functional loss. There was no evidence of pain with chewing or objective evidence of localized tenderness or pain on palpation. Evidence of crepitus or clicking of joints or soft tissue of the right TMJ was found. Left lateral excursion was greater than 4 mm. Pain was not noted on examination. There was no evidence of pain with chewing or objective evidence of localized tenderness or pain on palpation. No evidence of crepitus or clicking of joints or soft tissue of the left TMJ was found. The Veteran was able to perform repetitive use testing with at least 3 repetitions without additional loss of function or ROM. The Veteran was not examined immediately after repetitive use over time. The examiner determined that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. The examination was not conducted during a flare-up. The examiner determined that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare-ups. The examiner noted that the Veteran did not require a mechanically altered foods diet due to his TMJ. In March 2018 correspondence, the Veteran reiterated that he experienced jaw spasms and locking, as well as “ghost sensations” in the maxillary area where the loss of teeth occurred. See March 2018 correspondence from the Veteran. The Board finds that the January 2018 VA examination is inadequate. In that regard, the examiner failed to address the Veteran’s reports of spasms in his jaw and the significance, if any, on his functional ability. As such, remand is warranted for a new VA examination. Barr v. Nicholson, 21 Vet. App. 303 (2007). 2. Entitlement to service connection for chronic chest pain is remanded. The Veteran contends that his chest pain began during active duty and has continued since that time. See December 2013 NOD. In September 2019 written arguments, the Veteran, through his representative, indicated that VA treatment records identified other records pertaining to the Veteran’s chronic chest condition which had been scanned into VistA Imaging, however, those records had not been associated with the claims file. Specifically, the Veteran identified the following records: an April 24, 2013 VA cardiovascular evaluation noting that EKG results were in VistA Imaging, a January 20, 2015 VA EKG results note stating that EKG results were in VistA Imaging, a February 12, 2015 VA cardiology consult noting that an electrocardiogram showed occasional PSVE and PVC and that the full report could be reviewed in VistA Imaging, and a March 23, 2016 VA cardiovascular evaluation noting that EKG results were in VistA Imaging. See September 2019 Appellant’s Brief, pages 19-20. VA has a duty to “make reasonable efforts to assist” veterans “in obtaining evidence necessary to substantiate” their claims. 38 U.S.C. § 5103A(a)(1). This duty includes obtaining “VA medical records or records of examination or treatment at non-VA facilities authorized by VA,” so long as there is enough information for VA to adequately identify and locate them. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016); 38 C.F.R. § 3.159(c)(3) (2020). VA also has a has a duty to obtain VA records regardless of their relevance to the present claim. See Sullivan, 815 F.3d at 793. But VA is not required to search (or continue searching) for records if “‘no reasonable possibility exists that such assistance would aid in substantiating the claim.’” Jones v. Wilkie, 918 F.3d 922, 926 (Fed. Cir. 2019) (quoting 38 U.S.C. § 5103A(a)(2)). In addition to the records discussed above, the Veteran has also identified a November 29, 2013 VA treatment record indicating that he presented with complaints of chest pain. The Veteran reported that he had similar pain 2 days prior, for which he went to City Hospital. Treatment records from City Hospital, however, have not been associated with the claims file. Since these private records are relevant to his claim, and they have not been associated with the claims file, the VA has a duty to undertake reasonable efforts to obtain those records. Thus, remand is also warranted to enable the RO to obtain these potentially relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). 3. Entitlement to service connection for a bilateral elbow disability is remanded. 4. Entitlement to service connection for a bilateral ankle disability is remanded. The Veteran contends that his joint pain, to include the bilateral elbows and ankles, is a manifestation of an undiagnosed or medically unexplained chronic multi-symptom illness. See Appellant’s Brief, pages 11, 18. The Veteran was afforded VA examinations for his elbows and ankles in January 2012. The Veteran reported episodic elbow pain with unpredictable triggers. Regarding his ankles, the Veteran denied specific injury to the ankles. He reported chronic pain over the middle aspect of both ankles, as well as cracking. He also reported occasional rolling of his ankles. It was noted that the Veteran’s ankle pain was due to “presumed wear and tear during active duty activities and deployment.” After examination of the Veteran and review of the claims file, the examiner determined that the Veteran had normal bilateral elbows and ankles. In the June 2020 Memorandum Decision, noted above, the Court determined that the record raised the issue of a medically unexplained chronic multi-symptom illness. As the VA examinations did not address whether the Veteran’s bilateral elbow and ankle pain was a manifestation of an undiagnosed or medically unexplained chronic multi-symptom illness, the Board finds that remand is warranted for new VA examinations. Accordingly, the matters are REMANDED for the following action: 1. Associate with the claims file all outstanding records scanned into VistA Imaging pertaining to the Veteran’s chronic chest condition, to include EKG results noted in an April 24, 2013 VA cardiovascular evaluation, EKG results noted in a January 20, 2015 VA EKG results note, an electrocardiogram showing occasional PSVE and PVC noted in a February 12, 2015 VA cardiology consult, and EKG results noted in a March 23, 2016 VA cardiovascular evaluation. 2. After obtaining the necessary information and authorization from the Veteran, undertake the necessary efforts to obtain records of the Veteran’s treatment from City Hospital. If reasonable efforts prove unsuccessful, the Veteran should be notified and given an opportunity to obtain the records himself. All records and/or responses received should be associated with the claims file. 3. Afford the Veteran a VA medical examination to determine the current severity and manifestations of his service-connected TMJ. Access to the Veteran’s VA claims file should be made available to the examiner for review in connection with the examination. The examination report should identify all symptoms and pathology associated with the service-connected TMJ, to include any jaw spasms, locking, and/or “ghost sensations” and the functional effects of such symptoms, if any. 4. Afford the Veteran a VA medical examination addressing the nature and etiology of any current bilateral elbow disability. Access to the Veteran’s electronic VA claims file must be made available to the examiner for review in connection with the examination. All tests deemed necessary should be conducted and the results reported in detail. After examining the Veteran and reviewing the record, the examiner should provide an opinion, with supporting rationale, as to the following: (a) Is it at least as likely as not that any diagnosed bilateral elbow disability was incurred in or otherwise related to the Veteran’s active service? (b) If not, is it at least as likely as not that examination findings or other evidence demonstrate that any manifestations of the Veteran’s bilateral elbow disability represents an undiagnosed illness (where signs or symptoms cannot be attributed to known medical diagnoses) or a medically unexplained chronic multi-symptom illness related to his service in the Southwest Asia theater of operations? In providing the requested opinion, the examiner should reference any relevant evidence of record, to include the clinical evidence of record indicating that the Veteran experiences bilateral elbow pain. 5. Afford the Veteran a VA medical examination addressing the nature and etiology of any current bilateral ankle disability. Access to the Veteran’s electronic VA claims file must be made available to the examiner for review in connection with the examination. All tests deemed necessary should be conducted and the results reported in detail. After examining the Veteran and reviewing the record, the examiner should provide an opinion, with supporting rationale, as to the following: (a) Is it at least as likely as not that any diagnosed bilateral ankle disability was incurred in or otherwise related to the Veteran’s active service? (b) If not, is it at least as likely as not that examination findings or other evidence demonstrate that any manifestations of the Veteran’s bilateral ankle disability represents an undiagnosed illness (where signs or symptoms cannot be attributed to known medical diagnoses) or a medically unexplained chronic multi-symptom illness related to his service in the Southwest Asia theater of operations? In providing the requested opinion, the examiner should reference any relevant evidence of record, to include the clinical evidence of record indicating that the Veteran experiences bilateral ankle pain. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Ruddy, 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.