Citation Nr: 21011093 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 17-04 743A DATE: February 26, 2021 REMANDED Entitlement to service connection for a mandible or temporomandibular joint (TMJ) condition, to include malalignment of teeth and inflammation of gums, is remanded. Entitlement to an initial compensable rating for service-connected shin splints, right, is remanded. Entitlement to an initial compensable rating for service-connected shin splints, left, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from January 1986 to March 2011. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously remanded by the Board in March 2020. The Veteran, through his representative, testified before the undersigned Veterans Law Judge (VLJ) in an October 2019 hearing. A transcript of that hearing has been associated with the electronic claims file. See October 2019 Board Hearing Transcript. As an initial matter, the Board notes that the Veteran initially filed a claim of entitlement to service connection for “collapse of lower jaw alignment,” which was recharacterized as a mandible condition in the March 2020 Board remand. See December 2010 VA Form 21-526. However, it is well settled that when a Veteran makes a claim, they are seeking service connection for symptoms, regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Here, the Veteran has asserted that he experiences clicking and popping in his jaw with occasional knots on the right side. See November 2012 VA TMJ Conditions Disability Benefits Questionnaire (DBQ); Dayton VA Medical Center (VAMC) records, received November 2016 in CAPRI. Additionally, as will be discussed below, the evidence indicates that the Veteran may have a TMJ condition. See October 2020 VA TMJ Disorders DBQ; October 2020 VA Medical Opinion DBQ; December 2020 VA Addendum Opinion. As such, the Board finds it appropriate to recharacterize the Veteran’s claim as one of entitlement to service connection for a mandible or TMJ condition, to include malalignment of teeth and inflammation of gums. 1. Entitlement to service connection for a mandible or TMJ condition, to include malalignment of teeth and inflammation of gums, is remanded. The Board regrets the delay associated with this remand, particularly as this matter has been the subject of a prior remand. However, based on a review of the evidence of record, the Board finds that another remand is necessary as the Agency of Original Jurisdiction (AOJ) has not substantially complied with the March 2020 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, in March 2020, the Board instructed the AOJ to obtain the entirety of the Veteran’s service personnel records and service treatment records (STRs). Though the Veteran’s service personnel records were obtained, there is no indication in the claims file that his STRs were requested. See Service Personnel Records, received April 2020. Therefore, in an effort to ensure compliance with VA’s duty to assist, the Board finds that a remand is warranted to allow the AOJ to obtain the entirety of the Veteran STRs. See Stegall v. West, supra. Even if the Board could find substantial compliance with the March 2020 remand directives, a remand would nonetheless be warranted to allow the AOJ to obtain an adequate opinion regarding the Veteran’s claimed mandible or TMJ condition. In October 2020, the Veteran underwent examinations in which the Veteran reported that he lost two teeth in service due to failed root canals and failed restorations. The examiner noted diagnoses of loss of teeth, mal-aligned teeth, and gingivitis induced by plague and tartar. Ultimately, the examiner opined that the Veteran’s dental conditions were at least as likely as not related to his service, stating that the pre-service removal of the lower retainer, along with work done in service, caused the dental conditions. The examiner also stated that the mal-alignment of teeth could not have been caused by the Veteran’s in-service motor vehicle accident (MVA), but that the loss of teeth may be directly related to in-service treatment. See October 2020 VA TMJ Disorders DBQ; October 2020 VA Oral and Dental Conditions DBQ; October 2020 VA Medical Opinion DBQ. In other words, the examiner opined, without elaboration, that the Veteran’s in-service loss of teeth may be related to his in-service dental treatment, but that the mal-alignment of teeth is not related to his in-service MVA. The Board finds this to be conclusory, and, therefore, inadequate. A medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record. Stefl v. Nicholson, 21 Vet. App. 102, 124 (2007). In addition to clear conclusions with supporting data, a medical opinion must contain a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 201 (2008). In December 2020, the October 2020 examiner provided an addendum opinion opining that the Veteran’s dental conditions were less likely than not related to service. In support of this opinion, the examiner stated the dental history does not contain a rationale or evidence as to why the Veteran lost teeth in service, and the Veteran’s stated reasons are not in the history. See December 2020 VA Addendum Opinion. However, the Veteran’s service treatment records (STRs) indicate that, in July 2003, while attempting a root canal on tooth #31, a deep root fracture was noted, the tooth was determined to be unrestorable, and extraction was recommended. Extraction of the tooth was performed in July 2004. See STR-Dental. As such, the December 2020 addendum opinion appears to be based, in part, on an inaccurate factual premise and, therefore, is inadequate. See Reonal v. Brown, 4 Vet. App. 458 (1993). Additionally, though the examiner did not provide a diagnosis of a TMJ condition, in the October 2020 medical opinion the examiner stated that TMJ was inconclusively related to the Veteran’s in-service MVA as too much time had elapsed and there is no mention of TMJ in the medical records. See October 2020 VA Medical Opinion DBQ. Likewise, in the December 2020 VA addendum opinion, the examiner stated that a TMJ condition was not definitive as a single visit is not conclusive to diagnose a TMJ condition. See December 2020 VA Addendum Opinion. As it is unclear whether the Veteran has a TMJ condition, the Board finds the October 2020 opinion and December 2020 addendum thereto to be inadequate with respect to a TMJ condition. See Barr v. Nicholson, 21 Vet. App. 303 (2012). Moreover, as discussed above, potentially pertinent STRs have not been associated with the claims file. As such, the October 2020 VA examination reports and December 2020 addendum thereto are inadequate to the extent the examiner was unable to consider the Veteran’s prior medical history. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). For these reasons, the Board finds the October 2020 VA examination reports and December 2020 addendum thereto to be inadequate for adjudication purposes. As such, a remand is necessary to afford the Veteran with a new examination regarding the nature and etiology of his claimed mandible condition. See Barr v. Nicholson, supra. Lastly, the Board notes that, in October 2020, the AOJ requested that the Veteran provide the names, addresses, and approximate dates of treatment of all medical care providers that provided him with treatment pertinent to his claimed condition. The AOJ also provided the Veteran with a VA Form 21-4142, Authorization to Disclose Information, and VA Form 21-4142a, General Release for Medical Provider Information, to allow the AOJ to obtain his medical records on his behalf. To date, the Veteran has not responded to the request. VA’s duty to assist is not a “one-way street”, and a veteran seeking help cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining pertinent evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Nonetheless, as a remand of this matter is otherwise warranted, the Board finds that the AOJ should make one more attempt to identify and obtain any pertinent medical records. 2. Entitlement to an initial compensable rating for service-connected shin splints, right, is remanded. 3. Entitlement to an initial compensable rating for service-connected shin splints, left, is remanded. The Board regrets the delay associated with this remand, particularly as these matters are the subject of a prior remand. However, based on a review of the evidence of record, the Board finds that a remand is necessary to allow the AOJ to conduct additional development. Specifically, a remand is necessary to afford the Veteran with an adequate examination regarding the severity of his bilateral shin splints. As an initial matter, the Board notes that the Veteran’s bilateral shin splints are rated under Diagnostic Code (DC) 5262. Under the version of DC 5262 in effect prior to February 7, 2021, a compensable rating for impairment of the tibia and fibula requires either (a) malunion with a knee or ankle disability, or (b) nonunion, with loose motion, requiring a brace. When a rating is based on malunion with a knee or ankle disability, the applicable rating varies depending on the severity of such knee or ankle disability. 38 C.F.R. § 4.71a, DC 5262. As such, the nature and severity of any knee or ankle disability is instrumental in determining the applicable disability rating under DC 5262. In October 2020, the Veteran was afforded VA examinations in which the examiner noted that the Veteran’s bilateral shin splints produces pain in his knees and ankles and impacts range of motion (ROM) in his knees, but not in his ankles. However, the examiner also noted that the Veteran experiences pain with decreased ROM in his ankles when his shin splints flare-up. Additionally, the examiner noted that the Veteran did not have an ankle condition, but also noted that the Veteran’s documented abnormal ROM was attributable to ankle strain. See October 2020 VA Knee and Lower Leg Conditions DBQ; October 2020 VA Ankle Conditions DBQ. As such, the Board finds the October 2020 VA examination reports to be internally inconsistent and, therefore, inadequate. Moreover, as discussed above, the October 2020 examiner noted that the Veteran did not have an ankle condition. See id. However, the Veteran’s medical records indicate a current diagnosis of articular cartilage disorder of the ankle. See Wright-Patterson Medical Center records, received March 2020 in CAPRI. An examination is inadequate when, as indicated here, it fails to consider the Veteran’s prior medical history. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). In December 2020, the Veteran was afforded a VA examination pursuant to his claim of entitlement to service connection for bilateral knee osteoarthritis. In this examination, the examiner noted that the Veteran’s bilateral shin splints manifest with burning pain along the shins with physical activity but do not affect ROM of the knees or ankles. See December 2020 VA Knee and Lower Leg Conditions DBQ. However, no examination of the ankles was conducted, nor is there any indication that the examiner considered the Veteran’s assertion that his ankles and knees are highly affected by his shin splints. See id. As a rating for the Veteran’s bilateral shin splints is based, in part, on the severity of any knee or ankle condition, and as the October 2020 and December 2020 medical reports are unclear as to whether the Veteran has an ankle disability, the Board finds the examinations to be inadequate to this extent for rating purposes. As such, a remand is necessary to afford the Veteran with a new examination regarding the nature and severity of his service-connected bilateral shin splints. Accordingly, the matters are REMANDED for the following action: 1. With the Veteran’s assistance as appropriate, obtain and associate with the Veteran’s electronic claims file the entirety of the Veteran’s service treatment records and any outstanding medical records, whether VA or private, including records from Wright-Patterson Medical Center and Dayton VAMC from January 2020 to current. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran must be informed if any of these records are unable to be secured. 2. The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran any warranted examination. 3. After completing the development above, and any additional development warranted by the record, schedule the Veteran for an examination with an appropriate clinician to determine the nature and etiology of any current mandible or TMJ condition, to include malalignment of teeth and inflammation of gums. The entire claims file must be provided to, and reviewed by, the examiner and any indicated tests, studies, or evaluations should be performed. The examiner is asked to: (a.) Obtain the Veteran’s detailed lay history, including onset of symptomatology and employment. (b.) For each diagnosed mandible or TMJ condition, opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition had its onset during, or is otherwise related, the Veteran’s active duty service. • Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. • THE EXAMINER IS REMINDED THAT THE VETERAN IS COMPETENT TO REPORT SYMPTOMS, TREATMENT, AND INJURIES, AND THAT HIS REPORTS MUST BE TAKEN INTO ACCOUNT IN FORMULATING THE REQUESTED OPINIONS. 4. After completing the development in Section One, and any additional development warranted by the record, schedule the Veteran for a VA examination to determine the current severity of the Veteran’s service-connected bilateral shin splints. The entire claims file must be provided to, and reviewed by the examiner, and any indicated tests, studies, or evaluations should be performed. The examiner is asked to: (a.) Obtain the Veteran’s detailed lay history, including onset and progression of symptomatology. If the Veteran describes flare-ups, document the frequency, severity, and duration thereof. (b.) Identify all current bilateral leg, ankle, or knee conditions that are residuals of, or are otherwise attributable to, the Veteran’s bilateral shin splints. (c.) Test and document the ROM for the bilateral knees and ankles in active motion, passive motion, weight-bearing, and non-weight-bearing, on both an initial and after repetitive use basis. For each ROM, the examiner is asked to explicitly identify the degree in which pain is first evidenced by the Veteran’s visible behavior. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, a thorough explanation should be provided. (d.) The extent of any weakened movement, excess fatigability, and incoordination should be described. Any additional impairment due to such should be assessed in terms of the degree of additional ROM loss. Additional limitation following repetitive use over time, if any, must also be noted. (e.) If the Veteran describes flare-ups, after documenting the frequency, severity, and duration thereof, express an opinion as to whether there would be additional functional impairment during such flare-ups. The examiner should assess such impairment in terms of the degree of additional ROM loss and provide an explanation as to how such was determined. • Any opinion expressed by the examiner must be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. • If it is not feasible to perform a requested assessment to any degree of medical certainty without resort to speculation, a thorough explanation as to why the assessment cannot be performed should be provided. • THE EXAMINER IS REMINDED THAT THE VETERAN IS COMPETENT TO REPORT SYMPTOMS, TREATMENT, AND INJURIES, AND THAT HIS REPORTS MUST BE TAKEN INTO ACCOUNT IN FORMULATING THE REQUESTED OPINIONS. 5. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development action is incomplete, the appropriate corrective action must be implemented. If any report or opinion does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. (continued on the next page) YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. T. Martin III, 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.