Citation Nr: 1304384 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 10-20 842 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an additional period of convalescence beyond November 1, 2008 for excision of multiple maxillary cysts. 2. Entitlement to service connection for benign nevoid basal cell carcinoma syndrome. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from February 1983 to February 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Nashville, Tennessee, which, in pertinent part, denied entitlement to an additional period of convalescence beyond November 1, 2008 for the August 2008 oral surgery and denied service connection for nevoid basal cell carcinoma syndrome. In his May 2010 substantive appeal, the Veteran requested that he be scheduled for a Travel Board hearing before a Veterans Law Judge at the RO. Per his request, the Veteran was scheduled for a Travel Board hearing at the RO in July 2011. In a statement in support of claim received prior to the hearing, it was noted that the Veteran had undergone brain surgery and was requesting that his Travel Board hearing be cancelled and rescheduled after January 1, 2012. In a January 2012 letter to the Veteran, the RO indicated that the Veteran had again been scheduled for a Travel Board hearing on January 26, 2012. The notice was sent to the Veteran's last known address and was not returned. The Veteran failed to appear for the scheduled hearing. In a February 2012 Report of General Information Form, it was indicated that the Veteran stated he was never notified of the hearing and requested that the hearing be rescheduled. In November 2012, the undersigned Veterans Law Judge denied the Motion to Reschedule the Travel Board hearing after the Veteran failed to appear for the previously scheduled hearing. The Veterans Law Judge found that the Veteran had not shown good cause for failing to appear at the previously scheduled hearing. FINDINGS OF FACT 1. Oral surgery performed August 25, 2008 necessitated an initial period of convalescence from August 26, 2008 through January 26, 2009. 2. Oral surgery performed on August 25, 2008 necessitated additional convalescence from January 27, 2009 through July 26, 2009. 3. Nevoid basal carcinoma syndrome was not noted on the September 1982 service pre-enlistment examination report. 4. The Veteran's nevoid basal cell carcinoma syndrome clearly and unmistakably preexisted service. 5. The Veteran's nevoid basal cell carcinoma syndrome clearly and unmistakably did not increase in severity in service, and no disease or injury was superimposed on the preexisting nevoid basal cell carcinoma syndrome during active service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for an extension of a temporary total disability rating from November 1, 2008 through January 26, 2009, for convalescence following dental surgery on August 25, 2008, have been met. 38 C.F.R. § 4.30(b)(1) (2012). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for an extension of a temporary total disability rating from January 27, 2009 through July 26, 2009, for convalescence following dental surgery on August 25, 2008, have been met. 38 C.F.R. § 4.30(b)(2) (2012). 3. The Veteran's nevoid basal cell carcinoma syndrome clearly and unmistakably preexisted service. 38 U.S.C.A. §§ 1111, 1131 (West 2002); 38 C.F.R. §§ 3.303(c), 3.304 (2012). 4. The Veteran's preexisting nevoid basal cell carcinoma syndrome clearly and unmistakably was not aggravated by service. 38 U.S.C.A. §§ 1111, 1131 (West 2002); 38 C.F.R. §§ 3.303(c), 3.304(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The U.S. Court of Appeals for Veterans Claims (Court) has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board notes that the appellant's status has been substantiated. In a February 2009 letter the RO provided the appellant with notice that informed him of the evidence needed to substantiate his claim. The letter told him what evidence he was responsible for obtaining and what evidence VA would undertake to obtain. The letter also told him to submit relevant evidence in his possession. The February 2009 letter further advised the Veteran of how VA assigns disability ratings and effective dates. VA has a duty to assist a veteran in the development of the claim. This duty includes assisting a veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All pertinent treatment records, service, VA, and private have been obtained and associated with the claims folder insofar as possible. No other relevant records have been identified by the Veteran in this case. As it relates to the issue of service connection for nevoid basal cell carcinoma, the Veteran was afforded a VA examination in January 2009 to assist in determining the etiology of the nevoid basal carcinoma. In addition to performing the examination, the examiner rendered an opinion as to the etiology of the nevoid basal carcinoma and provided rationale to support the opinion. The examination provided the necessary detail to properly assess the Veteran's claim. Thus, the examination was sufficient for VA rating purposes. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As it relates to the claim for extension of the temporary total rating following the August 2008 surgery, an examination is not necessary as this is based upon the evidence of record, which includes VA treatment records, VA dental/oral examination report, and VA medical opinion regarding convalescence; thus, there is competent medical evidence of record to decide this issue. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c). The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claims, including by submission of statements and arguments presented by his representative and his ability to appear at a hearing if so desired. As noted above, the Veteran was scheduled for a hearing on two separate occasions. The first hearing was rescheduled. The Veteran did not report for the rescheduled January 2012 hearing, and it was ruled that good cause had not been shown for his failure to appear at the second hearing. The representative has submitted various briefs and statements in support of the claim, including in June 2011 and January 2013. For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to in substantiating the claims. Temporary Total Rating Extension Temporary total ratings will be assigned from the date of hospital admission and continue for one, two, or three months from the first day of the month following hospital discharge when treatment of a service-connected disability results in: (1) Surgery necessitating at least one month of convalescence; (2) Surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) Immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30(a). Total ratings for convalescence may be extended for one, two, or three months beyond the initial three months for any of the three reasons set forth above. Extensions of one or more months up to six months beyond the initial six months period may be made for reasons (2) or (3) above. 38 C.F.R. § 4.30(b). Notations in the medical record as to a veteran's incapacity to work after surgery must be taken into account in the evaluation of a claim brought under the provision of 38 C.F.R. § 4.30. Seals v. Brown, 8 Vet. App. 291, 296-97 (1995); Felden v. West, 11 Vet. App. 427, 430 (1998). Furthermore, the term "convalescence" does not necessarily entail in-home recovery. The Veteran essentially contends that he deserves an extension of a temporary total disability evaluation under 38 C.F.R. § 4.30 beyond November 1, 2008, based on a need for convalescence following August 25, 2008 oral surgery. The record reveals that on August 25, 2008 the Veteran underwent oral surgery, at which time the anterior maxillary bone was removed with roguer along with a piece of cyst wall lining. It was noted at that time that the Veteran would likely be undergoing additional surgery, including removal of teeth. On October 8, 2008, during the initially assigned period of convalescence, the Veteran underwent additional oral surgery. A full mouth extraction with a tori removal; an alveoloplasty of quadrants I, II, II, and IV; a major maxillary bone graft, were performed. At the time of an October 23, 2008 follow-up, physical examination revealed midface residual swelling. Intraoral wounds were noted to be pink and well perfused, and intact sutures were present in the maxilla. There was no exposed bone and a few areas of intact fibrin clot were present. The anterior maxillary alveolar ridge was stable. In a January 27, 2009 letter, the Veteran's VA treating oral surgeon indicated that the Veteran had been under her care for a syndrome causing multiple maxillary and mandibular odontogenic cysts requiring removal of a portion of his maxilla. She noted that a bone graft had been completed and the Veteran was awaiting fabrication of complete dentures. She stated that during this time the Veteran had been unable to secure employment. She requested that the Veteran's temporary disability evaluation be extended for a period of six months. She reported that the additional time would allow complete healing of the jaws, fabrication of upper and lower dentures, and assessment for recurrence of jaw tumors. First, the Board finds that the initial dental surgery performed on August 25, 2008 necessitated further convalescence from November 1, 2008 through January 26, 2009. Under 38 C.F.R. § 4.30(b)(1), total ratings for convalescence may be extended for one, two, or three months beyond the initial three months if there is evidence of severe postoperative residuals. While the Board notes that the Veteran had subsequent surgery performed in October 2008, during the time of the initially assigned convalescence period, which entailed surgery for at least a portion of nonservice-connected disabilities, additional surgery was performed on the maxilla, which served as the basis for the initial convalescence, and there were numerous teeth extracted, for which service connection for treatment is currently in place. Therefore, resolving all reasonable doubt in the Veteran's favor, as the Veteran initially was allowed a two month total rating for convalescence, the Board finds that he meets the criteria for a final three month extension of a total rating for convalescence beyond the initial two months from November 1, 2008 through January 26, 2009, under 38 C.F.R. § 4.30(b)(1). The Board further finds that the weight of the evidence is in relative equipoise on the question of whether the dental surgery performed on August 25, 2008 necessitated convalescence for an additional six months from January 27, 2009 through July 26, 2009. Under 38 C.F.R. § 4.30(b)(2), extensions of one or more months up to six months beyond the initial six months period may be granted if there is evidence of severe postoperative residuals. In the January 27, 2009 letter, the Veteran's treating physician indicated that the Veteran had been unable to secure employment, and requested that the temporary disability evaluation be extended for a period of six months to allow for, in pertinent part, complete healing of the jaws (which Board construes in part as a result of removal of a portion of the maxilla at the time of the August 2008 surgery) and fabrication of upper and lower dentures (which as noted above results from extraction of the teeth, for which service connection for treatment purposes is currently in effect). Therefore, resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria are met for the maximum six month extension of a temporary total rating from January 27, 2009 through July 26, 2009 for convalescence beyond the initial five months under 38 C.F.R. § 4.30(b)(2). Service Connection for Nevoid Basal Carcinoma Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also 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). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). A veteran who served during a period of war, or after December 31, 1946, will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior to service and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). For defects, infirmities, or disorders not noted when a veteran is examined, accepted and enrolled for service, the burden lies with the government to show, by clear and unmistakable evidence, that the defect, infirmity, or disorder both pre-existed and was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). With regard to the presumption of sound condition at entry into service, 38C.F.R. § 3.304(b) provides as follows: Only such conditions as are recorded in examination reports are to be considered as noted. (1) History of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. Determinations should not be based on medical judgment alone as distinguished from accepted medical principles, or on history alone without regard to clinical factors pertinent to the basic character, origin and development of such injury or disease. They should be based on thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof. (2) History conforming to accepted medical principles should be given due consideration, in conjunction with basic clinical data, and be accorded probative value consistent with accepted medical and evidentiary principles in relation to value consistent with accepted medical evidence relating to incurrence, symptoms and course of the injury or disease, including official and other records made prior to, during or subsequent to service, together with all other lay and medical evidence concerning the inception, development and manifestations of the particular condition will be taken into full account. (3) Signed statements of veterans relating to the origin, or incurrence of any disease or injury made in service if against his or her own interest is of no force and effect if other data do not establish the fact. Other evidence will be considered as though such statement were not of record. If a disorder was not "noted" on entering service, VA must show by clear and unmistakable evidence both a preexisting condition and a lack of in-service aggravation to overcome the presumption of soundness. A lack of aggravation may be shown by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the preexisting condition." 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304; Wagner, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If the government fails to rebut the presumption of soundness, the claim is one for service connection, not aggravation. Wagner, 370 F.3d at 1097. Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991); Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002) (explaining that, for non-combat veterans, a temporary worsening of symptoms due to flare ups is not evidence of an increase in disability). Accordingly, "a lasting worsening of the condition" - that is, a worsening which existed not only during service and/or at the time of separation but also continued thereafter - is required. See Routen v. Brown, 10 Vet. App. 183, 189 n. 2 (1997); see also Verdon v. Brown, 8 Vet. App. 529, 538 (1996). The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment will not be considered service connected unless the disease is otherwise aggravated by service. 38 C.F.R. § 3.306(b). Congenital or developmental defects are not diseases or injuries as such within the meaning of applicable law, and are not subject to service connection. 38 C.F.R. §§ 3.303(c), 4.9. See Winn v. Brown, 8 Vet. App. 510, 516 (1996), appeal dismissed, 110 F.3d 56 (Fed. Cir. 1997), and cases cited therein. See also VAOPGCPREC 82-90 (a reissue of General Counsel opinion 01-85 (March 5, 1985), which in essence interpreted that a disease considered by medical authorities to be of congenital, familial (or hereditary) origin must, by its very nature, have pre-existed a claimant's military service). However, the VA General Counsel has further interpreted that if, during service, superimposed disease or injury occurs, service connection may be warranted for the resultant disability. See Jensen, 4 Vet. App. at 306-307, citing Hunt, 1 Vet. App. 292; VAOPGCPREC 67-90. The term "disease" is broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. On the other hand, the term "defect" would be definable as a structural or inherent abnormality or condition that is more or less stationary in nature. 38 C.F.R. § 3.303(c). In addition, 38 C.F.R. § 3.303(c) provides that there are medical principles so universally recognized as to constitute fact (clear and unmistakable proof), and when in accordance with these principles the existence of a disability prior to service is established, no additional or confirmatory evidence is necessary. This regulation also states that where there is the notation or discovery during service of such residual conditions, such as fibrosis of the lungs or congenital malformations, with no evidence of the pertinent antecedent active disease or injury during service the conclusion must be that they pre-existed service. In rendering a decision on appeal, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). Except for when a different legal standard is indicated, when there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). In this case, the evidence shows that the Veteran entered active service in February 1983. A review of the Veteran's service treatment records reveals that there were no notations of nevoid basal cell carcinoma syndrome at the time of his September 1982 pre-enlistment examination. As such, the Veteran is entitled to the presumption of sound condition, and clear and unmistakable evidence is required to demonstrate both that the disease of nevoid basal cell carcinoma existed before acceptance and enrollment into service and was not aggravated by such service. 38 U.S.C.A. § 1111; see also Doran v. Brown, 6 Vet. App. 283, 286 (1994). In this Veteran's case, after a review of all the evidence of record, lay and medical, the Board finds that clear and unmistakable (obvious and manifest) evidence demonstrates that the Veteran's nevoid basal cell carcinoma syndrome preexisted active service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304. Service treatment records reflect that, soon after entrance into service in February 1983, in March 1983, the Veteran was seen with impacted tooth #1 and what appeared to be a dentigous cyst. There was no indication that the Veteran had sustained any injury or trauma which resulted in this condition. Universally recognized medical principles suggest that such notation or discovery of this condition so soon after service entrance, in the absence of evidence of relevant injury or disease during the first month of service, leads to the fact (clear and unmistakable proof) that nevoid basal cell carcinoma preexisted service. See 38 C.F.R. § 3.303(c) (stating that where there is the notation or discovery during service of such residual conditions, such as fibrosis of the lungs or congenital malformations, with no evidence of the pertinent antecedent active disease or injury during service, the conclusion must be that they pre-existed service). Service treatment records show subsequent ameliorative treatment for the same preexisting disorder, but do not show a permanent worsening in severity of the preexisting nevoid basal cell carcinoma. In May 1983 during service, the Veteran underwent surgery. A preoperative diagnosis of multiple malposed teeth with multiple maxillary cysts was rendered. Operative procedures performed included surgical extraction of Teeth 1 and 2 and removal of maxillary cysts. In January 1986 during service, the Veteran underwent additional surgery for removal of additional cysts from the jaw area. He was seen several times following surgery with complaints of jaw pain which were assessed as being a result of the cyst removal. At the time of a July 2008 VA examination, the Veteran was noted to have had several maxillary cysts on radiographic examination in 1983. These were originally removed, along with teeth one and two, and the diagnosis listed was odontogenic keratocysts of the maxillary right posterior and the maxillary left anterior between roots. Follow-up on these cysts was without incident. The VA examiner noted that the Veteran was discharged from the military in 1987, that he had been involved in several altercations since that time, and that he sustained facial trauma in 2003 and 2005, during which altercations he developed a fractured mandible and a fractured right zygomatic arch. The examiner noted that radiographs revealed a radiolucent area which extended from tooth 11 to tooth 8, which was suggestive of either a nevoid basal cell carcinoma or recurrent odontogenic keratocyst. Diagnoses of possible recurrent odontogenic keratocyst of the maxillary anterior or nevoid basal cell carcinoma or another lesion yet to be determined were rendered. As noted above, the Veteran underwent extensive oral surgery in October 2008. In a January 2009 VA examination report, the July 2008 VA examiner indicated that he had previously suspected that the Veteran had nevoid basal cell carcinoma at the time of the prior examination, and that the diagnosis had been subsequently confirmed. He stated that nevoid basal cell carcinoma was an autosomal dominant inherited condition. The January 2009 VA examiner's opinion indicates that the nevoid basal carcinoma syndrome was hereditary and that cysts in the jaw area were commonplace with nevoid basal cell carcinoma. Medical literature forwarded by the Veteran's representative and associated with claims folder reflects that nevoid basal cell carcinoma syndrome is a hereditary condition characterized by multiple basal skin cells cancers with common symptoms including jaw cysts. Jaw cysts were noted to be present in almost 90 percent of the people who had this condition. It was further noted to be a genetic condition. The medical treatises actually weigh against the claim, as they confirm that the condition at issue is familial/hereditary and that cysts are part of the symptomatology. For these reasons, the Board finds that the Veteran's nevoid basal cell carcinoma syndrome clearly and unmistakably preexisted service. 38 U.S.C.A. §§ 1111, 1131; 38 C.F.R. §§ 3.303(c), 3.304. The Board next finds that the Veteran's preexisting nevoid basal cell carcinoma syndrome clearly and unmistakably was not aggravated by service. As reviewed above, the service treatment records show subsequent ameliorative treatment for the same preexisting disorder, but do not show a permanent worsening in severity of the preexisting nevoid basal cell carcinoma. The evidence shows that the in-service treatment of the jaw cysts was ameliorative; such ameliorative treatment may not constitute aggravation. 38 C.F.R. § 3.306(b) (the usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, will not be considered service connected unless the disease is otherwise aggravated by service). There is no indication that this treatment had amounted to more than a temporary flare-up, much less a chronic worsening. In this case, there is no indication of in-service injury, including no evidence of superimposed disease or injury. The evidence shows no worsening of the preexisting nevoid basal carcinoma syndrome during service. For these reasons, the Board finds that the Veteran's preexisting nevoid basal cell carcinoma syndrome clearly and unmistakably was not aggravated by service. 38 U.S.C.A. §§ 1111, 1131; 38 C.F.R. §§ 3.303(c), 3.304(b). Accordingly, the appeal of this claim must be denied. ORDER An extension of a temporary total disability rating from November 1, 2008 through July 26, 2009, for convalescence following dental surgery on August 25, 2008, is granted. Service connection for nevoid basal cell carcinoma syndrome is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs