Citation Nr: 21032218 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 16-40 930A DATE: May 26, 2021 REMANDED Entitlement to increases in the staged (20 percent prior to June 1, 2013, and 10 percent from that date) ratings assigned for temporomandibular joint (TMJ) dysfunction, to include the propriety of the reduction effective June 1, 2013, is remanded. REFERRED The issue of entitlement to service connection for surgical scars along the temporomandibular articulation was raised at the April 2021 Board hearing. The Agency of Original Jurisdiction (AOJ) has not addressed that issue; therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. REASONS FOR REMAND The appellant is a Veteran who served on active duty from January 2001 to September 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision, which (prospectively) reduced the rating assigned for TMJ dysfunction from 20 to 10 percent, effective June 1, 2013. In April 2021, a virtual Board hearing was held before the undersigned; a transcript of the hearing is in the Veteran's record. REASONS FOR REMAND Entitlement to increases in the staged (20 percent prior to June 1, 2013, and 10 percent from that date) ratings assigned for TMJ dysfunction, to include the propriety of a reduction effective June 1, 2013 The Board finds that further development of medical evidence is necessary to satisfy VA's duty to assist the Veteran. Review of the record suggests that pertinent private treatment records remain outstanding. At the Veteran's April 2021 Board hearing, the Veteran testified that in July 2012 he underwent jaw surgery at a non-VA facility; his representative asserted that remand is required to obtain those surgical records. Several weeks after the hearing, the Veteran submitted a VA Form 21-4142 which identified three non-VA providers. VA subsequently sent correspondence to all three providers that requested copies of all treatment records; only two have replied. [One of the providers who replied was Dr. J.M. (a non-VA dentist); his office provided a copy of a December 2011 CT examination report of the mandible and maxilla. The other provider who responded was Dr. D.K.; his office provided a copy of the July 2012 surgical report (bilateral discectomies of the temporomandibular joints with autogenous fat graft placement). Records of other pre-surgical and post-surgical (follow-up) examinations or treatment were not submitted.] Accordingly, remand to obtain complete copies of all outstanding private treatment records, (including particularly from the third provider who has yet to respond) is required. Remand is also required for an examination to assess the current severity of the Veteran's TMJ dysfunction. At the April 2021 Board hearing, the Veteran testified that the most recent VA examination (in October 2012) was conducted three months after his July 2012 jaw surgery. He testified that his jaw had not fully recovered from the surgery, and that recovery from such surgery can take six to nine months. [Notably, he reported in January 2013 (three months after the October 2012 examination) correspondence that his jaw "is not fixed and I haven't even finished my surgery treatment," suggesting that the nature and severity of his jaw disability was not yet stable on October 2012 examination (and that records of private treatment remain outstanding, as discussed above).] His representative argued that the October 2012 examination report was inadequate because it failed to address all of the Veteran's reports of symptoms and functional loss, and because it failed to address "whether there truly has been a sustained improvement." The Board herein makes no finding regarding the adequacy of the October 2012 examination report. However, considering the evidence outlined above and the duration of the intervening period since the Veteran was last examined by VA (nearly nine years), the Board finds that an examination to assess the current severity of the jaw disability is warranted, particularly now that any recovery period for the July 2012 surgery (as reported by the Veteran) has lapsed. The matter is REMANDED for the following: 1. Secure for the record updated (to the present, all not already associated with the record) complete clinical records of VA evaluations and treatment the Veteran has received for his TMJ. 2. Ask the Veteran to identify all providers of private evaluations or treatment he has received for his TMJ dysfunction (records of which are not already in the record) and submit authorizations for VA to secure complete clinical records of all such evaluations and treatment, including specifically all treatment records prior to, and following, his July 2012 jaw surgery. Obtain complete pertinent records from all providers identified. 3. Thereafter, arrange for a dental examination of the Veteran to assess the current nature and severity of his temporomandibular joint dysfunction. The record (including this remand and any evidence obtained pursuant to the development above) must be reviewed by the examiner in conjunction with the examination. Any indicated tests or studies should be completed. All pertinent findings should be described in detail. The examiner should note (elicit from the Veteran) the frequency, severity, and duration of any flare-ups, and describe how/provide an estimate of the extent to which the TMJ dysfunction limits his functioning during flare-ups. That determination should be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups. [If such cannot feasibly be described, or if an estimate of any additional impairment during flare-ups cannot be provided based on the Veteran's reports and what is shown by clinical data of record, there must be a full explanation why that is so.] The examiner must include complete rationale with all opinions, citing to supporting factual data and medical principles. The opinions must be expressed in definite (vs. speculative) terms, and if a stated opinion is inconsistent with clinical findings noted (or reported in the record), the conflict must be reconciled (explained away). GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dupont, 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.