Citation Nr: 1307718 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 05-28 778A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California THE ISSUE Entitlement to service connection for a jaw disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from December 1959 to December 1963. This appeal to the Board of Veterans' Appeals (Board) arose from a May 2004 rating decision by the RO in St. Petersburg, Florida that denied service connection for a jaw condition. In December 2004, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in August 2005, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in September 2005. During the pendency of the appeal, the Veteran's claims file was transferred to the jurisdiction of the RO in Los Angeles, California, which has certified the appeal to the Board. In January 2009, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. In June 2009, the Board denied service connection for basal cell carcinoma and remanded the claim for service connection for a jaw disability to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After taking further action, the RO/AMC continued to deny the claim (as reflected in a December 2010 supplemental SOC (SSOC)) and returned that matter to the Board for further appellate consideration. The claim for service connection for a jaw disability was remanded by the Board again to the RO via the AMC in August 2011. After taking further action, the RO/AMC continued to deny the claim for service connection for a jaw disability (as reflected in a January 2013 SSOC). As a final preliminary matter, the Board notes that when this case was previously before the Board in June 2009 and August 2011, the Board referred to the RO for appropriate action matters pertaining to the Veteran's entitlement to service connection for pulmonary arterial hypertension as due to Agent Orange exposure; service connection for asbestosis; service connection for a lung condition as due to asbestos exposure; and service connection for basal cell carcinoma as due to asbestos exposure. Inasmuch as the record before the Board still does not reflect that the RO has addressed these matters, they are again referred to the RO for appropriate action. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the matter herein decided has been accomplished. 2. Although the Veteran has asserted injuring his jaw during service, his assertions as continuous jaw symptoms in and post-service are not deemed credible; a chronic jaw disability was first diagnosed many years after service; and there is no competent, probative evidence or opinion to refute the two medical opinions of record finding that current jaw disability is not etiologically related to service. CONCLUSION OF LAW The criteria for service connection for a jaw disability are not met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 -23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in an October 2003 letter issued prior to the rating decision on appeal, the RO provided notice to the appellant regarding what information and evidence was needed to substantiate the claim for service connection for a jaw disability, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. This letter specifically informed the Veteran to submit any evidence in his possession pertinent to the claim (consistent with Pelegrini and the version of 38 C.F.R. § 3.159 then in effect). Post rating, a March 2006 letter provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. July 2007, December 2010, and January 2013 SSOCs reflect readjudication of the claim after issuance of the March 2006 letter. Hence, the Veteran is not shown to be prejudiced by the timing of the March 2006 notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Medical evidence associated with the claims file consists of the available service treatment reports, relevant service personnel records, and VA and private treatment records. Also of record and considered in connection with the appeal is the transcript of the Veteran's January 2009 hearing, along with various written statements provided by the Veteran and by his representative, on his behalf. The Board finds that no further RO action on this claim, prior to appellate consideration, is required. As requested in its June 2009 and August 2011 remands, the RO has attempted to obtain additional VA outpatient treatment reports, and these efforts have resulted in the physical receipt of such records dated through July 2011. Responses in August 2011 from VA medical facilities in Palo Alto and Loma Linda, California, indicated that no additional records from these facilitas were available for the time frame (post August 2009) requested by the AMC as directed by remand. The record also reflects extensive efforts to obtain additional service treatment reports with, as summarized in December 2011 and January 2013 Formal Finding of Unavailability memoranda, negative results. The record also reflects VA examinations conducted in May 2010 and December 2012 that include opinions, based on a review of the claims file, addressing the question of whether a current jaw disability is etiologically related to service and are otherwise in substantial compliance with the remand instructions. Hence, the Board's prior remand directives have been fulfilled, to the extent possible, and no further RO action in this regard is necessary. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield, 20 Vet. App. at supra (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc ., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder on a direct basis, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). 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); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. The Board notes that it has reviewed all of the evidence of record, to include in the Veteran's claims file and the Virtual VA file (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal. (The Virtual VA file contains additional VA outpatient treatment reports dated through January 11, 2013, that are documented to have been considered by the AMC in the January 2013 SSOC. In addition, these records are either cumulative of evidence currently of record confirming the existence of a current jaw disability or are otherwise not pertinent to the claim on appeal. As such, the decision below will not refer to any evidence that is not physically of record.) Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. At the outset, the Board is aware that in cases such as this, in which it appears that all of the service treatment reports are not of record, VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the doubt rule. Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis of the Veteran's claim for service connection for a jaw disability has been undertaken with these heightened duties in mind. Consistently, to include in sworn testimony to the undersigned, the Veteran has reported that his jaw was injured in service when he was struck in the face with a pipe by a fellow service member while sleeping aboard the U.S.S. Princeton. While the service treatment records associated with the claims file, to include dental records dated in December 1959, reflect any complaints or findings regarding an injury to the jaw, as described by the Veteran, he is competent to report a history of in-service injury. See, e.g., Grottveit v. Brown, 5 Vet. App. 91, 93 (1991). Moreover, the service personnel records do reflect that the Veteran was on "no duty" status on the U.S.S. Princeton from April 30 to May 24, 1962, after having been transferred to this ship's dispensary, and the Veteran testified to the undersigned that this no duty status was necessitated due to his inability to speak as a result of the claimed injury to the jaw. (See January 7, 2009, Hearing Transcript, page 6.) However, even if, in the absence of a documented reference to jaw injury in the available service records, the Board was to accept as credible the Veteran's current assertions that he experienced an in-service injury to his jaw, the record simply does not provide persuasive evidence to support a finding that there exists an etiological relationship between current jaw disability and service, to include on the basis of any continuity of jaw symptoms. As noted with respect to injury, the Veteran, as a layperson, certainly competent to report his own symptoms, or other matters within his personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). He also is competent to report a continuity of symptoms. See Charles v. Principi, 16 Vet. App. 370 (2002). However, such report must be weighed against the medical and other pertinent evidence of record. Cf. Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Post service, the Veteran's first documented reference to a jaw injury is reflected in his original application for VA benefits filed in September 2003. Moreover, the first clinical reference to a jaw disability (with private and VA clinical reports of record dated prior thereto being silent for a jaw disability) is reflected in a May 2007 VA outpatient treatment report that showed the Veteran describing temporomandibular (TMJ) pain that he said was the result of an in-service injury in 1961 in which he was struck in the jaw by a fellow serviceman while sleeping. He told the examiner his jaw was broken as a result of this assault and that he had facial surgery when this occurred. He reported that he had not been seen by a dentist for jaw pain or that the condition had otherwise been treated, and indicated that his last dental appointment was "years ago." The assessment was possible TMJ syndrome. Magnetic Resonance Imaging (MRI) of the jaw later in May 2007 revealed anterior displacement with reduction of the left TMJ. The report of a May 2010 VA examination arranged to obtain a medical opinion to address the question of whether the Veteran's jaw disability is the result of service reflects that the Veteran repeated his assertion as to how his jaw was injured during service, and indicated that this injury occurred in 1961. However, in contrast to the history reported by the Veteran of having in-service facial surgery when he presented for VA outpatient treatment in May 2007, he told the examiner in May 2010 that while he was treated with gauze following this injury, he did not seek treatment for jaw pain or TMJ syndrome in service. The diagnosis following the examination was TMJ, which the examiner opined was not the result of the jaw fracture reported to have been incurred in service. The examiner documented review of the claims file, and as a rationale for her opinion, she noted that the Veteran was not seen or treated for a TMJ disorder during service. The opinion by the December 2012 VA examiner, again documented to have been based on a review of the claims file, was as follows with respect to the etiology of the jaw disability diagnosed at that time (left anterior displacement without reduction of unknown etiology): There was nothing in the C-File to substantiate the [Veteran's] claim that he had facial trauma fifty years ago. [The] Veteran has some occlusal problems mainly due to premature loss of teeth. Dental records [] dated December 1959 show [the] [V]eteran was diagnosed with multiple carious lesions, and many extractions including 2, 5, 7, 15, 17, 18, 31 & 32. There [were] no documentation entries about the jaw injury in 1962 and no ent[ri]es about complaints. [The Veteran] has an entry about being in an infirmary from April 30, 1962 to May 24th, 1962 however the reasons are unknown. While the evidence clearly shows the existence of a current jaw disability as reflected on the VA examination and MRI reports set forth above, the opinion provided by each examiner was that no current jaw disability is the result of service. Significantly, neither the Veteran nor his representative has presented or identified any competent medical evidence or opinion refuting these opinions or otherwise supporting the claim for service connection. Moreover, on these facts, the Veteran cannot controvert the medical opinions of record or otherwise support his claim on the basis of lay assertions, alone. The Veteran appears to assert, in connection with the current claim, that he has experienced continuing jaw symptoms since his in-service injury. The Board points out that that the United States Court of Appeals for the Federal Circuit recently clarified that the law providing for awards of service connection based on continuity of symptomatology only pertains to "chronic" diseases listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). No diagnosed jaw disability is among the diseases listed at section 3.309(a). In any event, the Board finds that, in the Veteran's assertions in this regard-advanced in connection with the current claim for monetary benefits-simply are not deemed credible. Impacting the Veteran's credibility are his widely varying accounts of the extent of the injury and his in-service treatment following injury. For example, while he reported to the VA examiner in connection with outpatient treatment in May 2007 that he had facial surgery during service, his later history reported to VA examiners did not reflect such surgery, or any other in-service treatment for the jaw with the exception of the application of gauze. Moreover, in sworn testimony to the undersigned, the Veteran indicted his "no duty" status from April 30 to May 24, 1962, did not include hospitalization but was simply necessitated by his inability to talk as a result of the jaw injury. It is also noteworthy that the Veteran first asserted that he had a jaw disability almost 40 years after service in 2003, and that the first clinical evidence of a jaw disability is not shown until almost four years later in 2007, factors that tend to weigh against any current assertions of continuous symptoms, and, ultimately, the claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Given the lack of credible assertions of continuity of symptoms, and because there is otherwise no competent medical or independent to evidence to support the assertions as to continuity of jaw complaints, to the extent that the December 2012 VA examiner did not, as requested in the August 2011 remand, specifically address the Veteran's assertions of continuity of jaw symptoms since service, the Board finds that such omission constitutes harmless error. The December 2012 opinion is adequate for the adjudication purposes. Finally, as for any direct assertions that there exists a medical nexus between a current jaw disability, to include TMJ, and alleged in-service injury-the matter upon which this claim turns-the Board emphasizes that such is a medical matter within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran and his representative are not shown to be other than laypersons without appropriate training and expertise, neither is competent to render a probative (i.e., persuasive) opinion as to the etiology of any currently diagnosed jaw disability, the lay assertions in this regard have no probative value. See, e.g., Jandreau, 492 F. 3d at 372. See also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); Bostain v. West , 11 Vet. App. 124, 127 (1998) and Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Under these circumstances, the Board finds that the claim for service connection for a jaw disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for a jaw disability is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs