Citation Nr: 0007467 Decision Date: 03/20/00 Archive Date: 03/23/00 DOCKET NO. 94-07 539 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a claimed neck disorder. 2. Entitlement to service connection for a claimed jaw disorder. REPRESENTATION Appellant represented by: Virginia Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Julie L. Salas, Associate Counsel INTRODUCTION The veteran served on active duty from February 1979 to February 1983 with subsequent active duty for training from March 2, to March 16, 1991. This matter initially came to the Board of Veterans' Appeals (Board) on appeal of a November 1992 rating decision of the RO. The Board remanded this matter for additional development of the record in April 1996. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. There is competent medical evidence of record which suggests that the veteran's claim of service connection for a jaw disorder is plausible. CONCLUSION OF LAW The veteran has presented a well-grounded claim of service connection for a jaw disorder. 38 U.S.C.A. §§ 1131, 1137, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, one who submits a claim for benefits under a law administered by VA has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a). Only when that initial burden has been met does the duty of the Secretary to assist such a claimant in developing the facts pertinent to the claim attach. Id. The United States Court of Appeals for Veterans Claims (Court) has further defined a well-grounded claim as a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). It has also held that where a determinative issue involves a medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible is required. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In addition, in order for a claim to be considered plausible, and therefore well grounded, there must be evidence of both a current disability and of a relationship between that disability and an injury or disease incurred in service or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. The regulations also provide that service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The veteran contends that he suffers from a jaw disorder as a result of an injury which he sustained while serving on active duty for training in March 1991. The veteran testified at a hearing at the RO in April 1993 that, in March 1991, he sustained an injury to his jaw, neck and shoulder in a fall during a 20-mile patrol. According to the veteran, while running at full speed, he tripped and fell, causing him to hit his right shoulder on a stump. Meanwhile, another soldier running behind him fell on top of him, driving his shoulder and chin into the ground and pushing his head backwards. The veteran stated that he initially noticed that his jaw was injured when he went to eat the day of the injury and felt a popping sensation and soreness in his jaw. The veteran was afforded a VA examination in July 1992. At that time, he reported a history of injury to his chin sustained in a fall while on active duty. His complaints included "bilateral snapping" of the preauricular region and an inability to fully open his mouth. He also reported experiencing soreness in the preauricular region after eating chewy foods. The final impression included a diagnosis of temporomandibular joint dysfunction secondary to trauma. In light of the above, the Board finds that the veteran's claim of service connection for a jaw disorder is plausible and capable of substantiation, and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a). When a veteran submits a well-grounded claim, VA must assist him in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a). The Court has held that the duty to assist the claimant in obtaining and developing facts and evidence to support his claim includes obtaining all relevant medical records. Littke v. Derwinski, 1 Vet. App. 90 (1990). It also includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran that takes into account the records of prior medical treatment. Green v. Derwinski, 1 Vet. App. 121 (1991). Consequently, the veteran should be afforded another VA examination to determine the nature and likely etiology of the claimed jaw disorder. In addition, all pertinent treatment records should be obtained for review. ORDER As a well-grounded claim of service connection for a jaw disorder has been submitted, the appeal to this extent is allowed, subject to the discussion hereinbelow. REMAND As noted hereinabove, when a veteran submits a well-grounded claim, VA must assist him in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a). In light of the above evidence, the veteran should be afforded a VA examination to determine the nature and likely etiology of any jaw disorder. In addition, all pertinent treatment records should be obtained for review. With regard to the claim of service connection for a neck disorder, the Board remanded this matter for additional development of the record in April 1996, to include affording the veteran a special VA orthopedic examination in order to ascertain the current nature and likely etiology of any neck disability. This examination was conducted in June 1996. At that time, the veteran reported the history of injury in service and a diagnosis of cervical spondylosis was rendered. Subsequently, in August 1997, the same examining physician submitted an addendum to the initial report. In it, the physician noted that he had consulted with another physician as to the correct interpretation of EMG nerve conduction studies that had not been previously available to him for review. According to the examining physician, the specialist had determined that no nerve injury could be documented based on the study presented. As a result, based on the evaluation of these studies and the findings made on VA examination in June 1996, the examiner opined that it was medically probable that the currently demonstrated neck disability was due to the training injury sustained in 1991. The same physician who had conducted the June 1996 VA examination, submitted yet another addendum to his report in August 1999. He explained that, while the EMG study verified that there was apparently no neurological injury sustained in the 1991 training injury, that did not rule out the potential for other soft tissue structures, including bone, cartilage and ligaments to have permanent injury. In fact, the physician noted that findings on clinical examination suggested that the veteran did have permanent injury referable to the training incident. Therefore, it was his contention that the veteran continued to suffer the residual effects of injuries received in 1991. Based on a review of the 1996 VA examination report and the subsequent addenda, the Board finds that the VA examiner failed to follow the directives of the April 1996 remand order. Specifically, it remains unclear as to what identifiable residuals referable to the veteran's neck are related to his 1991 injury. When a medical examination report "does not contain sufficient detail," the adjudicator is required to "return the report as inadequate for evaluation purposes." DeLuca v. Brown, 8 Vet. App. 202 (1995). The RO is advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the Court. The Court has stated that compliance by the Board or the RO is neither optional nor discretionary. Where compliance with the remand orders of the Board or the Court has not been achieved, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). In light of the foregoing, the Board is REMANDING this matter for the following actions: 1. The RO should take appropriate steps to contact the veteran and request that he identify any names, addresses and approximate dates of treatment from all VA and non-VA health care providers who have treated or examined him for the claimed jaw and neck disorders since service. After securing the necessary release, the RO should attempt to obtain copies of pertinent treatment records identified by the veteran (which have not been previously requested) in response to this request and associate them with the claims folder. 2. The RO then should schedule the veteran for a VA examination to determine the nature and likely etiology of the claimed jaw disorder. The veteran's claims folder, along with a complete copy of this remand must be made available to and reviewed by the examiner. Based on his/her review of the case, the examiner should provide an opinion as to whether it is at least as likely as not that the veteran has current jaw disability due to disease or injury which was incurred in or aggravated by active service or as the result of any service-connected disability. The examination findings, along with the complete rationale for each opinion expressed and conclusion reached, should be set forth in a typewritten report. The report of the examination should be associated with the veteran's claims folder. 3. The entire claims folder should be forwarded to the examiner who conducted the June 1996 VA examination of the veteran, if available. Following review of the entire claims folder, including a copy of this remand, the VA examiner should specifically identify the residual disability referable to the veteran's neck which are related to his 1991 injury. The RO is advised that additional examination of the veteran is not required unless the VA examiner is unable to identify the residuals with specificity without further examination of the veteran. 4. After undertaking any additional development deemed appropriate, the RO should again review the veteran's claims. If any benefit sought on appeal is not granted, the veteran and his representative should be issued a Supplemental Statement of the Case, which should include all pertinent laws and regulations, and be afforded a reasonable opportunity to reply thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran 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). In taking this action, the Board implies no conclusion as to any ultimate outcome warranted. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. STEPHEN L. WILKINS Member, Board of Veterans' Appeals