Citation Nr: 1102703 Decision Date: 01/24/11 Archive Date: 02/01/11 DOCKET NO. 07-27 344 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for residuals of a head injury claimed as temporomandibular joint syndrome (TMJ). 2. Entitlement to service connection for residuals of a head injury claimed as migraine headaches, to include as secondary to TMJ. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Bosely, Associate Counsel INTRODUCTION The Veteran had active service from May 1969 to May 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which denied service connection for residuals of a head injury and migraine headaches. In a statement received by VA in July 2004, the Veteran indicated that he wanted the RO to reconsider his claim. He specifically identified the February 2004 rating decision. Thus, the July 2004 statement constitutes a notice of disagreement with respect to the February 2004 rating decision. 38 C.F.R. §§ 20.201, 20.302. Additionally, an April 2005 rating decision denied service connection for TMJ. Previously, in a June 1976 rating decision, the RO denied service connection for a fractured jaw. The present claim of service connection for TMJ refers to distinct symptoms and diagnosis than those at issue in 1976. Thus, it is considered a separate claim, and new and material evidence is not necessary to reopen the claim. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). Likewise, as the other claimed head injury residual, migraine headaches, was also not specifically considered in 1976, that issue is also deemed an original claim for adjudication purposes. The issues of (1) clear and unmistakable error (CUE) in a prior RO decision; (2) service connection for a low back disorder; and (3) service connection for a neck disorder have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDING OF FACT The weight of the credible and competent evidence is in relative equipoise on the question of whether the Veteran's current disabilities manifested by TMJ and migraine headaches are related to head trauma sustained in a motor vehicle accident during service. CONCLUSIONS OF LAW 1. Extending the benefit of the doubt to the Veteran, his disability manifested by TMJ is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2010). 2. Extending the benefit of the doubt to the Veteran, his disability manifested by migraine headaches is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). The VCAA and its implementing regulations require that upon the submission of a substantially complete application for benefits VA must notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, the regulations define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Considering the present case in light of the above criteria, and in view of the favorable disposition, the Board finds that all notification and development action necessary to render a fair decision in this matter has been accomplished. II. Analysis The Veteran contends that service connection is warranted for TMJ and migraine headaches. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Also, certain chronic diseases may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability, which includes the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 448 (1995). To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service- connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). In making all determinations, the Board must fully consider all lay assertions of record. A layperson is competent to report on the onset and continuity of observable symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board's duty is to assess the credibility and weight of the evidence. See Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Here, the Board finds that by extending the Veteran the benefit of the doubt, service connection is warranted for residuals of a head injury manifested by TMJ and migraine headaches. First, the record contains competent and credible evidence showing an injury during service, followed by continuous symptoms after service separation. In particular, the Veteran maintains that he has TMJ and migraine headaches as a result of a motor vehicle accident (MVA) that occurred during service. His service treatment records (STR) confirm that he was involved in a MVA in February 1970. Following the MVA, he underwent treatment for numerous injuries, including trauma to right side of his face and a laceration on the chin. Also, he was admitted for surgery related to a contusion of the right eye. Contemporaneous X-rays, including a skull series, showed findings that were not interpretable without further information. Furthermore, subsequent dental records in the STR show that the Veteran had several teeth on the left side replaced in February and March 1972. Then, at his October 1972 service separation examination, the Veteran reported a history of an MVA in 1970. He denied a history of frequent or severe headache, but informed the examiner that he had been told he had a hairline fracture of his jaw in November 1970 after the MVA. The examiner noted "no record of it." The examiner, however, also noted that the Veteran still had a stiff neck from the accident. Clinical evaluation showed neck with normal range of motion; physical examination of the head, face, and neck, and the mouth and throat were "normal." The STRs, in summary, confirm that the Veteran had an injury in service, although he did not complain of headaches or jaw pain at the time of service separation. Nonetheless, the Board finds highly probative that he filed a claim for VA disability benefits in April 1976, which was shortly after his May 1973 service separation. In support of that claim, he wrote that he had chipped his teeth in the MVA, which had resulted in an uneven bite. In further support of this claim, he wrote one month later, in May 1976, that he had fractured his jaw during the MVA and was experiencing sharp pain in his jaw, as well as frequent headaches. More recently, in May 2003, the Veteran wrote in support of his present claim that he developed a headache while still hospitalized immediately after the MVA. He had daily headaches for the next two months. Thereafter, he had headaches approximately once per week, though they eventually decreased in frequency to once per month. Also, in November 2003, the Veteran wrote that he had dental treatment on multiple occasions after the MVA. The dentist found that his jaw would open and drop to the left side. He was given the option of having the jaw surgically rebroken and reset, but he chose not to have this procedure done. Additionally, the Veteran's wife wrote in October 2003 that she had known the Veteran since three years prior to his service entrance. She did not notice headaches at that time. Rather, she remembered him complaining of jaw pain and headaches after his February 1970 MVA. He continued to seek treatment over the years. The Board finds that the statements from the Veteran, including the statements contemporaneous to his April 1976 claim, and the statements from his wife are credible and competent evidence establishing a continuity of symptoms after service. Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007); see Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. Accordingly, the remaining issue is whether he has a current disability etiologically related to the in-service injury and the post-service symptomatology. See Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). On this issue, with regard to the claimed TMJ, the evidentiary record includes a December 1988 private (non-VA) treatment record showing the Veteran's complaints of jaw pain since fracturing his jaw during service. He also reported that the jaw had been dislocated to the left since that time. Physical examination revealed left TMJ somewhat tender, and the jaw dislocated when opening with swinging to the right. The assessment was TMJ syndrome, and the Veteran was recommended to consultation his dentist about the problem. More recently, the Veteran underwent an ear, nose, and throat (ENT) consultation at VA in August 2004. He described a history of pain on the left side of the jaw and face following an MVA during service. The assessment was TMJ syndrome. The VA otolaryngologist characterized the disorder as "longstanding and is associated with a previous trauma and possibly bruxism." The VA otolaryngologist explained to the Veteran "that this is likely a fibrotic scar joint with some arthritic changes, and will likely not improve in the future." An accompanying magnetic resonance imaging scan (MRI) report shows: posterior displacement of the left meniscus, which does not recapture in the open mouth position; there were also degenerative changes at the left TMJ joint. In light of the August 2004 VA otolaryngologist's opinion, the Board finds that the evidence is at least in a state of relative equipoise in showing that the Veteran's TMJ resulted from the MVA during his service. Importantly, the VA otolaryngologist's opinion is unequivocal and uncontroverted by any remaining evidence of record. Thus, it is the most probative evidence of record addressing the issue. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). With regard to the claimed migraine headaches, the record includes a May 2004 private (non-VA) treatment note. The Veteran described his history of an in-service MVA followed by a constant left-side headache for two years. He reported that his headaches currently occurred approximately 3 to 4 times per month. The examining physician, in addition to reviewing the Veteran's history, also performed a thorough clinical evaluation. Based on the examination results, the physician's impression was migraine headaches. The physician then opined that "I suspect that [the Veteran's] migraine disordered [sic] has been triggered by the head injury that he suffered" during service. The physician went on to explain that the Veteran's headaches are left-sided and not alternating sides, which suggests a predisposition on the left side "and I think that the head injury and impact on the left side probably provoked the headaches." The physician further opined that the Veteran's headaches "are probably also aggravated by continuing problems with TMJ dysfunction." Then, in a December 2005 VA clinical record, the Veteran complained of increasing migraines. The examining VA nurse practitioner (ARNP) discussed with the Veteran that "his migraines (were) a result of the TMJ he (suffered) from since the MVA accident while in the service." In light of the May 2004 and December 2005 opinions, the Board finds that the evidence is at least in a state of relative equipoise in showing that the Veteran's migraine headaches are etiologically related to the in-service MVA, to include as secondary to his TMJ. See 38 C.F.R. § 3.310. Importantly, the private physician in May 2004 and the VA ARNP in December 2005 both concurred on this issue. For these reasons, the Board finds that service connection is warranted for disabilities manifested by TMJ and migraine headaches. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.310; See Davidson, 581 F.3d at 1316. Thus, by extending the Veteran the benefit of the doubt, the claims are granted. ORDER Service connection for temporomandibular joint syndrome is granted, subject to governing criteria applicable to the payment of monetary benefits. Service connection for migraine headaches is granted, subject to governing criteria applicable to the payment of monetary benefits. ______________________________________________ ERIC S. LEBOFF Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs