Citation Nr: A25035700 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 240929-478210 DATE: April 17, 2025 REMANDED Entitlement to service connection for temporomandibular joint (TMJ) disorder is remanded. Entitlement to service connection for an apical low-density lesion is remanded. REASONS FOR REMAND The Veteran had active service from March 2019 to March 2024. Procedural History The rating decision on appeal was issued in June 2024 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the September 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the June 2024 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. Because the Board is remanding the claims, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). The Board acknowledges the United States Court of Appeals for Veterans Claims (Court) decision in Williams v. McDonough, 37 Vet. App. 305 (2024) that found under 38 C.F.R. § 20.202 (c)(2), the Board generally may not decide an appeal before the deadline for requesting an AMA docket switch has elapsed. In this case, as the Board is remanding all claims currently on appeal for additional development, the Board finds that failure to seek waiver of the Veteran's ability to switch dockets at this juncture is harmless. In the June 2024 rating decision, the AOJ denied service connection for, as relevant here, TMJ disorder and an apical low-density lesion. On the VA Form 10182, the Veteran listed the issue on appeal as "TMJ (also claimed as apical low-density lesion." The Board has broadly construed this statement to mean the Veteran is appealing both denials. Remand Bases Under the AMA, the Board may only remand an issue for the correction of (1) duty to assist errors occurring prior to the date of the AOJ decision on appeal (i.e., pre-decisional duty to assist errors) and (2)?AOJ errors in satisfying a regulatory or statutory duty, if correction of such error would have a reasonable possibility of aiding in substantiating the appellant's claim. ?See?38?C.F.R. §?20.802(a).? Having reviewed the evidence of record, the Board finds that remand for a pre-decisional duty to assist error is required. On February 21, 2023, the Navy Medical Center in Portsmouth, Virginia, performed a computed tomography of the Veteran's mouth. The results were: "There is an apical low density lesion associated with the mesiobuccal and distobuccal apices of #14 concerning for apical periodontitis. The apical lesion may have focal communication with the floor of the adjacent maxillary sinus with mucosal thickening of the floor of the left maxillary sinus possibly reactive in nature. In the imaging Interval, #19 has been extracted. The extraction socket has a homogeneous granular appearance with thin but continuous alveolar cortices suggestive of continued bony healing of graft material. TMJ: No significant findings Sinonasal: No significant findings Impressions: 1. Suspected apical periodontitis #14. Please correlate with clinical findings for definitive periapical diagnosis. Upon discharge, the dentist noted "Benign TMJ exam -- patient does have intermittent complaints of pain on mastication." In January 2024, the Veteran claimed service connection for TMJ disorder and an apical low density-lesion. He cited February 21, 2023, the date of the record quoted above, as the date the disabilities began or worsened. In May 2024, the AOJ examined him for his claims. The examiner, a nurse practitioner, reported the Veteran did not then have, nor had he ever had, TMJ disorder. The examiner also noted the Veteran "went to USC dentistry 2-3 weeks ago." At the time, the Veteran resided in California, so the Board presumes this means the University of Southern California treated the Veteran. On the same day, the examiner noted the lesion claim was a dental condition. In June 2024, the AOJ examined the Veteran again, this time with a dentist. The examiner reported he examined the Veteran for TMJ disorder, but the Veteran's "concern was a missing tooth #19." The examiner also reported the Veteran "does not have a current diagnosis associated with any claimed conditions listed above." The examiner further reported "no diagnosis of oral and dental condition confirmed. [The Veteran] was concerned about a tooth that was lost due to decay but his forms claimed that he needed to be seen for TMJ. No complaints of TMJ given during the appointment." Later that month, the AOJ denied both claims. It found the Veteran did not have TMJ disorder or an apical low-density lesion. In September 2024, the Veteran appealed the June 2024 rating decision. Remand is warranted for two reasons. First, the AOJ should have attempted to obtain the Veteran's dental treatment records from the University of Southern California prior to adjudicating his claim. Because it did not, it erred in assisting him in prosecuting his claim under 38 U.S.C. § 5103A. Therefore, under 38 C.F.R. § 20.802(a), remand is warranted to attempt to obtain the records. Second, the Board finds the Veteran, as of the February 2023 service treatment record cited above, had TMJ. As such, the VA examiners did not correctly report his dental history. Also, the examiners did not adequately explain the relationship between the in-service apical low-density lesion on tooth #14 and its post-service status. Because the AOJ did not obtain an addendum opinion to resolve these issues before it decided the claims, it erred in assisting the Veteran under 38 U.S.C. § 5103A. Therefore, under 38 C.F.R. § 20.802(a), remand is warranted for a new dental examination. The matters are REMANDED for the following action: 1. Attempt to obtain the Veteran's dental treatment records from the University of Southern California. 2. Then, schedule the Veteran for a dental examination to determine the nature and etiology of his claimed TMJ disorder and apical low-density lesion. The clinician must review the entire claims file, including this Remand. The clinician should opine: a) Has the Veteran had TMJ disorder at any point since his January 2024 claim? Why or why not? b) If the answer to (a) is yes, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's TMJ disorder began during, or was otherwise caused by, his military service? Why or why not? c) Has the Veteran had an apical low density-lesion on tooth #14 at any point since his January 2024 claim? Why or why not? d) If the answer to (c) is yes, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's apical low density-lesion began during, or was otherwise caused by, his military service? Why or why not? In answering these questions, expressly address the February 2023 service treatment record quoted above and cited in the Veteran's January 2024 claim. A complete rationale is required. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Sopko, 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.