Citation Nr: 0001799 Decision Date: 01/21/00 Archive Date: 01/28/00 DOCKET NO. 98-18 407 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a low back disorder. 2. Entitlement to an increased disability evaluation for temporomandibular joint (TMJ) dysfunction with headaches, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: John Stevens Berry, Esq. ATTORNEY FOR THE BOARD C. Trueba-Sessing, Associate Counsel INTRODUCTION The case comes before the Board of Veterans' Appeals (Board) on appeal from an October 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which denied the benefits sought on appeal. The veteran served on active service from August 1968 to April 1970. The Board notes that, in an October 1997 letter, the veteran's representative indicated that the veteran was requesting an appeal hearing at the RO; however, such hearing was not to be scheduled until a named VA employee was subpoenaed by the VA to testify at the hearing. Subsequently, in an October 1997 letter from the RO, the veteran and his representative were informed that their request that VA subpoena the named employee was denied. At present, as the record does not contain further indication that the veteran or his representative have requested that the hearing be scheduled without the presence of the requested VA employee, or have otherwise reiterated the veteran's desire to schedule a hearing, the Board deems the veteran's October 1997 request for a hearing withdrawn. See 38 C.F.R. § 20.702 (1999). FINDINGS OF FACT 1. In a January 1997 Board decision, the veteran was denied service connection for a low back disorder; this decision is final. 2. The evidence associated with the claims folder since the January 1997 Board decision, when considered alone or in conjunction with all of the evidence of record, is so significant that it must be considered in order to fairly decide the merits of the veteran's claim. 3. The veteran's claim for service connection for a low back disorder is well grounded. 4. All relevant evidence necessary for an equitable disposition of the claim for an increased rating has been obtained by the RO. 5. The veteran's TMJ dysfunction with headaches is not characterized by migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The January 1997 Board decision is final. 38 U.S.C.A. § 7104 (West 1991); 38 C.F.R. § 20.1100 (1999). 2. The veteran has submitted new and material evidence to reopen the claim of entitlement to service connection for a low back disorder, and the claim is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. §§ 20.1105, 3.156(a) (1999). 3. The veteran's claim of entitlement to service connection for a low back disorder is well grounded. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303 (1999). 4. The criteria for a disability evaluation, in excess of 30 percent, for TMJ dysfunction with headaches have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.124a, 4.150 Diagnostic Code 9999-8100 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Whether New and Material Evidence Has Been Submitted to Reopen a Claim of Service Connection for a Low Back Disorder. In a January 1997 Board decision, the veteran was denied service connection for a low back condition on the grounds that his service records contained a private medical statement indicating he sustained a contusion to the low back prior to his service, and that the evidence did not show either that his low back disorder was aggravated during his service or was otherwise related to service. At present, as the veteran has attempted to reopen his claim of service connection, his case is once again before the Board for appellate review. However, because the January 1997 Board decision is final, the veteran's claim may only be reopened if new and material evidence is submitted. See 38 U.S.C.A. §§ 5108, 7104(b); 38 C.F.R. § 3.156(a). Consideration of whether new and material evidence has been submitted is required before the merits of the claim can be considered. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). New evidence will be presumed credible solely for the purpose of determining whether the claim has been reopened. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In the recent case of Winters v. West 12 Vet. App. 203 (1999) (en banc), the United States Court of Appeals for Veterans Claims (the Court), citing Elkins v. West 12 Vet. App. 209 (1999) (en banc), held that the two-step process set out in Manio v. Derwinski, 1 Vet. App. 140, 145 (1991), for reopening claims became a three-step process under the Federal Circuit's holding in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998): the Secretary must first determine whether new and material evidence has been presented under 38 C.F.R. § 3.156(a); second, if new and material evidence has been presented, immediately upon reopening the Secretary must determine whether, based upon all the evidence and presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C. § 5107(a); and third, if the claim is well grounded, the Secretary may evaluate the merits after ensuring the duty to assist under 38 U.S.C. § 5107(b) has been fulfilled. In this case, since the January 1997 final adjudication, the additional evidence in the file which is related to this issue includes a May 1997 medical statement from William M. Sandy, M.D., indicating the veteran reported he fell against a hatch injuring his back when he was assaulted during his service in 1969. Dr. Sandy further notes the veteran had severe degenerative changes at the L1-2 interspace and had post traumatic degenerative change which developed with lateral osteophyte formation and bridging between the vertebrae. This was deemed to be most likely related to the veteran's reported in-service injury. In addition, the evidence includes various written statements by the veteran and his representative tending to link his current low back disorder to his service. After a review of the additional evidence submitted subsequent to the January 1997 Board decision, the Board finds that the additional evidence submitted, when considered alone or in conjunction with all of the evidence of record, is so significant that it must be considered in order to fairly decide the merits of the veteran's claim. As such, this evidence is "new and material" as contemplated by law, and thus, provides a basis to reopen the veteran's claim of service connection for a low back disorder. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Having reopened the veteran's claim of service connection for a low back disorder, the Board turns to the "well grounded" analysis required by Winters, Elkins and Hodge. In this regard, the veteran must satisfy three elements for his claim for service connection to be well grounded. First, there must be competent evidence of a current disability. Second, there must be medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury. Lastly, there must be medical evidence of a nexus or relationship between the in-service injury or disease and the current disability. See Epps v. Brown, 9 Vet. App. 341 (1996). In determining whether a claim is well grounded, the truthfulness of the evidence is presumed. See Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995); King v. Brown, 5 Vet. App. 19, 21 (1993). In reviewing the evidence of record de novo, the Board finds the veteran's service medical records in fact contain an April 1968 statement from Neil B. Bentley, M.D., indicating the veteran suffered from a contusion of the lumbar spine on July 1, 1965 of which he had fully recovered without residuals. In addition, the Board notes the service medical records are negative for any complaints of or treatment for any low back problems during the veteran's service. However, the service medical records contain notations dated April 1969 indicating the veteran was treated for lacerations to the forehead incurred when he accidentally slipped and struck himself on the forehead with a clipping hammer. As well, December 1969 notations reveal he was treated for a fracture to the left mandible, although there is no further discussion as to how he incurred this left mandible fracture. More importantly, the May 1997 statement from Dr. Sandy tends to link the veteran's low back disorder to a reported in- service injury in 1969. Thus, after a de novo review of the veteran's case, the Board finds that the May 1997 statement from Dr. Sandy provides sufficient evidence to show a nexus between the veteran's current low back disorder and his service. As such, the Board finds that the veteran's claim of entitlement to service connection for a low back disorder is well grounded. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303 (1999). However, as the Board deems that additional development is necessary prior to final adjudication on the merits, the veteran's claim is remanded to the RO for such development. II. Entitlement to an Increased Disability Evaluation for TMJ Dysfunction with Headaches. As a preliminary matter, the Board finds that the veteran's claim is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). That is, the Board finds that the veteran has presented a claim which is not implausible when his contentions and the evidence of record are viewed in the light most favorable to the claim. The Board is also satisfied that all relevant facts have been properly and sufficiently developed. Accordingly, no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a) (West 1991). Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1999). Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is the primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (1999). Where the particular disability for which the veteran has been service connected is not listed, it may be rated by analogy to a closely related disease in which not only the functions affected, but also the anatomical location and symptomatology are closely analogous. See 38 C.F.R. §§ 4.20, 4.27. See also Lendenmann v. Principi, 3 Vet. App. 345, 349- 350 (1992); Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In this case, in a July 1995 rating decision, the veteran was awarded service connection and a 0 percent disability evaluation, by analogy, for TMJ dysfunction with headaches under Diagnostic Code 9999-8100, which was subsequently increased to a 30 percent evaluation in a March 1996 rating decision. In this regard, Diagnostic Codes in the 9900s evaluate dental and oral conditions. At present, as the veteran contends his disability is more severe than currently evaluated, he is seeking an increased disability evaluation in excess of 30 percent. With respect to the evidence of record, the evidence shows the veteran has been treated for headaches since 1974. Subsequently, in February 1995 and December 1995 VA examination reports, such headaches were linked to his TMJ dysfunction. In addition, the evidence includes a December 1995 VA examination report which notes the veteran complained of headaches 4 to 5 times per week. However, the record also includes a self reported dairy of headaches submitted by the veteran for the period including from October 1995 to October 1998, which notes the veteran has suffered from headaches at a rate of one to three per week since October 1995. These headaches were reported to be severe in nature and lasting from two to eight hours at a time. Furthermore, the evidence includes an October 1998 VA examination report indicating the veteran reported an increase in the frequency and severity of his headaches since his last examination in December 1995. Specifically, the veteran noted his headaches had gone from three per month to three per week. Also, he reported his headaches began on the right or left temporal, progressing cephalically to the top of the head and then anteriorly, lasting from 2.5 hours to 8 hours. Upon examination, the veteran denied any prodromal symptoms of headaches, and although he reported seeking a dark place during his headaches, he denied significant photophobic phenomenon prior to the headaches. In addition, He denied nausea or vomiting with his headaches, and any relationship between mastication and the inception of his headaches. A November 1998 addendum to the October 1998 VA examination report notes that in all probability the veteran should be service connected for just headaches or tension headaches, as opposed to migraines. And, the examiner noted that, given the veteran's prior medical record, he/she was perplexed about the veteran's award of service connection for migraines. With respect to the applicable law, under Diagnostic Code 8100, a 50 percent evaluation is warranted when the veteran presents migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent evaluation is warranted when there are migraine headaches with characteristic prostrating attacks occurring on average once a month over the last several months. And, a 10 percent evaluation is available if the veteran presents migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months. See 38 C.F.R. § 4.124a, Diagnostic Code 8100 (1999). After a review of the evidence, the Board notes that the evidence shows the veteran currently suffers from headaches about one to three times per week, which are reportedly severe and last between two and eight hours at a time. However, the Board also finds that the medical evidence of record does not show the veteran's headaches are productive of very frequent completely prostrating and prolonged attacks, which in turn are productive of severe economic inadaptability. Therefore, the Board concludes that the preponderance of the evidence is against an award of a disability evaluation in excess of 30 percent for the veteran's TMJ dysfunction with headaches. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (1999). In arriving at this conclusion, the Board has considered 38 U.S.C.A. § 5107(b), which expressly provides that the benefit of the doubt rule must be applied to a claim when the evidence submitted in support of the claim is in relative equipoise. The evidence is in relative equipoise when there is an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. When the evidence is in relative equipoise, the reasonable doubt rule must be applied to the claim, and thus, the claim must be resolved in favor of the claimant. See Massey v. Brown, 7 Vet. App. 204, 206-207 (1994); Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). In this case, after reviewing the evidence of record, the Board finds that the evidence is not in relative equipoise, and thus, the benefit of the doubt rule does not apply to this case. The potential application of various provisions of Title 38 of the Code of Federal Regulations have been considered whether or not they were raised by the veteran as required by the holding of the United States Court of Veterans Appeals in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991), including the provisions of 38 C.F.R. § 3.321(b)(1), which provides procedures for assignment of an extra-schedular evaluation. In the instant case, the evidence does not show the veteran's symptomatology has caused marked interference with employment or the need for frequent periods of hospitalization, or has otherwise rendered impracticable the application of the regular schedular standards. Accordingly, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 237, 239 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER New and material evidence having been submitted, the claim for service connection for a low back disorder is reopened; the appeal is granted to this extent only. The claim of entitlement to service connection for a low back disorder is well grounded. An evaluation in excess of 30 percent for TMJ dysfunction with headaches is denied. REMAND As previously noted, the Board finds that the claim of entitlement to service connection for a low back disorder is well grounded. Epps v. Brown, 9 Vet. App. 341 (1996). However, as the Board deems that further development of the veteran's claim is necessary prior to final adjudication, the claim is remanded to the RO for such development. Once the claimant has established that he or she has a well grounded claim, section 5107(a) of the U.S. Code requires the VA to assist a claimant in developing the facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); Epps v. Gober, 126 F. 3d 1464 (1997). More importantly, the law is clear that, after a claim is determined to be well grounded, the veteran may be considered for a VA examination, pursuant to 38 C.F.R. § 3.326 (1999); see Slater v. Brown, 9 Vet. App. 240, 244 (1996). As to the evidence or record, the May 1997 medical statement from Dr. Sandy tends to link the veteran's present low back disorder to an in-service injury sustained in 1969. In this respect, the veteran's service medical records contain April 1969 notations indicating the veteran was treated for lacerations to the forehead incurred when he accidentally slipped and struck himself on the forehead with a clipping hammer, and December 1969 notations revealing he was treated for a fracture to the left mandible, although there is no further discussion as to how he incurred this left mandible fracture. The Board notes, however, that Dr. Sandy's medical statement fails to address the above discussed April 1968 statement from Dr. Bentley describing the veteran's pre-service contusion to the lumbar spine in July 1965. In addition, the Board notes the veteran's service records are negative for any complaints of or treatment for any low back problems during service. Thus, given that Dr. Sandy's conclusion fails to address the impact that the veteran's pre-service low back injury may have had on his present low back disorder, and given that the service medical records are negative for any back problems, the Board finds that an additional VA examination of the veteran's back is necessary prior to final adjudication. The purpose of this VA examination is to clarify his current low back diagnosis(es) and to better determine the severity and etiology of any such diagnosis(es). Based on the foregoing, and in order to fully and fairly adjudicate the veteran's claim in this case, the appeal is REMANDED to the RO for the following actions: 1. The RO should arrange for a VA examination of the veteran by a physician with appropriate expertise to determine the nature, extent and etiology of any currently present low back disorders. All indicated studies should be performed, and the claims folder must be made available to the examiner for review. Based upon the examination results, a review of the claims folder, and consideration of the veteran's complete medical history, the examiner should provide an opinion as to whether it is at least as likely as not that the veteran's present low back symptomatology/disorders are related to his July 1965 contusion of the lumbar spine or to his period of service. In addition, the examiner should provide an opinion as to whether it is at least as likely as not that the veteran's low back condition was permanently aggravated during his service, as opposed to having worsened due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306(a) (1999); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The examiner must include the complete rationale for all opinions and conclusions expressed. 2. Thereafter, after ensuring that the directives of this remand have been fully satisfied, the RO should de novo adjudicate the issue of service connection for a low back disorder. In making its determination, the RO should review all the relevant evidence in the claims file. If the determination remains unfavorable to the veteran, the RO should furnish the veteran and his representative a supplemental statement of the case and provide an opportunity to respond. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The veteran is free to submit any additional evidence he desires to have considered in connection with his current appeal. He has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). However, no action is required of the veteran until he is notified. WARREN W. RICE, JR. Member, Board of Veterans' Appeals