Citation Nr: 21032089 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 20-01 839 DATE: May 25, 2021 REMANDED Entitlement to service connection for a jaw condition, to include secondary to bipolar disorder and related disorder due to traumatic brain injury, is remanded. Entitlement to a compensable evaluation for residuals, fracture maxilla claimed as loss of four teeth, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1962 to December 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020 correspondence, the Veteran requested entitlement to a TDIU as part of his increased rating claim. As entitlement to a TDIU has been raised as part and parcel of the increased rating claim on appeal, the Board has assumed jurisdiction of this issue. See Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Entitlement to service connection for a jaw condition, to include secondary to bipolar disorder and related disorder due to traumatic brain injury, is remanded. In his November 2018 notice of disagreement, the Veteran requested a decision review officer (DRO) hearing. The hearing was scheduled on September 19, 2019, however, a transcript is not of record nor is there any indication that the hearing was not held. A remand is warranted to associate the DRO hearing transcript with the claims file. The Veteran claims that he has a jaw condition secondary to his service-connected bipolar disorder due to traumatic brain injury. See April 2018 VA 21-526EZ. The RO has obtained multiple VA medical opinions on the nature and etiology of the Veteran's jaw condition. On May 2018 examination, a diagnosis of temporomandibular joint disorder (TMJ) was provided. For direct service connection, the examiner opined that the Veteran's TMJ is at least as likely as not related to the Veteran's 1966 fracture maxilla during service. No rationale was provided. The RO requested a VA medical opinion on whether the Veteran's TMJ is a new diagnosis or progression of previously service-connected residuals fracture left maxilla, or a separate condition all together. In a June 2018 VA medical opinion, the same examiner, opined that the Veteran had a new and separate jaw condition unrelated to service. Contrary to his May 2018 VA medical opinion, the examiner stated that there is insufficient medical evidence to establish a nexus between the Veteran's current symptoms and his in-service maxilla fracture. As rationale, the examiner referenced a February 1968 rating decision showing no residuals of maxilla fracture in terms of jaw functioning and mastication and January 1968 medical records documenting a normal jaw. The same VA examiner provided medical opinions on secondary service connection in July 2018. The examiner provided a positive nexus opinion on the relationship between the Veteran's TMJ and his service-connected fracture left maxilla (claimed as loss of four teeth) residuals. No rationale was provided. In addition, the examiner opined that the Veteran's TMJ was not due to or the result of his service-connected fracture of nose residuals, or bipolar and related disorder due to traumatic brain injury. In October 2018 a new VA examiner indicated that she was unable to affirm a diagnosis of TMJ. The examiner proceeded to provide a positive medical opinion on the relationship between the Veteran's loss of four teeth and service. However, the Veteran had already been granted service-connected for fracture left maxilla (claimed as loss of four teeth) residuals. See May 1967 Rating Decision. The Board finds the VA opinions inadequate to decide the claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that once VA has provided a VA examination or obtained a medical opinion, it is required to provide or obtain one that is adequate for the purpose sought). Notably, the Board finds the examiners' opinions confusing. The Board acknowledges that the first VA examiner provided positive nexus opinions on direct and secondary service connection, but the examiner failed to provide any rationale for the conclusions reached. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Further, the first examiner initially provided a positive nexus opinion on direct service connection in May 2018, but later provided a negative nexus opinion on direct service connection in June 2018. Although in July 2018, for secondary service connection, the examiner provided a medical opinion on causation, an opinion on aggravation was not provided. An opinion regarding secondary service connection is inadequate if it does not address both causation and aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 138 (2013). The most recent October 2018 VA examiner did not provide a medical opinion on the Veteran's jaw condition, as she found no evidence of TMJ. Confusingly, the examiner provided a positive nexus opinion on the Veteran's loss of four teeth and service, however, the Veteran had already been granted service connection for fracture left maxilla (claimed as loss of four teeth) residuals. See May 1967 Rating Decision. As such, the claim is remanded for a new VA medical opinion. See Barr, 21 Vet. App. at 303. 2. Entitlement to a compensable evaluation for residuals, fracture maxilla claimed as loss of four teeth, is remanded. 3. Entitlement to a TDIU due to service-connected disabilities is remanded. In January 2020 correspondence, the Veteran requested entitlement to a TDIU as part of his increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has asserted that he is unable to work due to his service-connected disabilities. See April 2021 VA 21-8940. He is currently service-connected for face and neck multiple scars with neuropathy of the trigeminal nerve, residual scars of the face and neck, bipolar and related disorder due to traumatic brain injury, bilateral hearing loss, impairment of V (trigeminal) cranial nerve left side, fracture of right elbow residuals, fracture of nose residuals, tracheostomy scar residual, fracture left maxilla claims as loss of four teeth residuals, and right upper chest scar. His combined evaluation is 90 percent. In support of his claim, the Veteran submitted a TDIU Vocational Assessment completed by a private rehabilitation counselor in March 2021. The counselor opined that the Veteran has been unable to secure and follow substantially gainful employment, including sedentary skilled and unskilled employment since at least April 2018. The Board finds this opinion inadequate to resolve the claim on appeal because the counselor failed to reconcile conflicting medical evidence. Notably, a subsequent April 2021 VA medical opinion on individual unemployability stated that with proper hearing or adaptive devices, the Veteran's service-connected hearing loss caused no work restrictions. Similarly, a September 2019 VA examiner opined that the Veteran's service-connected fracture left maxilla claimed as loss of four teeth had no functional impact. To date, a VA medical opinion addressing the combined effect of the Veteran's service-connected disabilities has not been obtained. Based on the foregoing, the Board finds that a VA examination and medical opinion is needed. The matters are REMANDED for the following actions: 1. Associate the September 19, 2019 DRO hearing transcript with the claims file. If the requested record is unavailable, the claims file should be annotated as such and the Veteran and his representative notified. 2. Arrange for an appropriate health care provider to review the Veteran's claims file to determine the nature and likely etiology of the claimed jaw condition. (a) The examiner should indicate whether it is at least as likely as not (50 percent probability or greater) that a jaw condition had causal origins in service or is otherwise related to the Veteran's active duty service. (b) The examiner should indicate whether it is at least as likely as not, (50 percent probability or greater), that a jaw condition was (A) caused or (B) aggravated beyond its normal progression by a service-connected disability, to include left maxilla claimed as loss of four teeth residuals, and bipolar and related disorder due to traumatic brain injury. Aggravation means an increase in disability any additional impairment of earning capacity of the nonservice-connected disability. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the diagnosed disability prior to aggravation by the service-connected disability. The examiner should specifically comment on the Veteran's diagnosed TMJ, and prior VA opinions in May 2018, June 2018, July 2018, and October 2018. If the reviewing health care provider finds that physical examination or telehealth interview of the Veteran and/or diagnostic testing is necessary, such should be accomplished. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Arrange for an appropriate health care provider to review the Veteran's claims file to determine the combined effects of his service-connected disabilities and any resulting impairment. The examiner should address how the Veteran's service-connected disabilities alone result in functional impairment and comment on the Veteran's ability to function in an occupational environment. The examiner should elicit from the Veteran his complete educational, vocational, and employment history and should note his complaints regarding the impact of service-connected disabilities on employment. The examiner should identify all limitations or functional impairment caused solely by the service-connected disabilities. If the reviewing health care provider finds that physical examination or telehealth interview of the Veteran and/or diagnostic testing is necessary, such should be accomplished. A written copy of the report should be associated with the electronic claims folder. 4. Readjudicate the claims on appeal in light of additional evidence added to the record since the Statement of the Case. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Baker, 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.