Citation Nr: 1308123	
Decision Date: 03/11/13    Archive Date: 03/20/13

DOCKET NO.  07-10 266A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUES

1.  Entitlement to service connection for a disability manifested by hair loss, to include as due to an undiagnosed illness.

2.  Entitlement to service connection for a disability manifested by dizziness, confusion, and fatigue, to include as due to an undiagnosed illness.

3.  Entitlement to service connection for a disability manifested by jaw pain, to include bruxism.


ATTORNEY FOR THE BOARD

B. Elwood, Associate Counsel




INTRODUCTION

The Veteran served on active duty from May 1993 to September 2005.

These matters initially came before the Board of Veterans' Appeals (Board) from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi.  In that decision, the RO denied entitlement to service connection for hair loss, dizziness with confusion and fatigue, and jaw pain.

The RO in Indianapolis, Indiana currently has jurisdiction over the Veteran's claims.

In March 2012, the Board remanded these matters for further development.

In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claims.  The documents in this file have been reviewed and are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal.

The issue of entitlement to service connection for a disability manifested by jaw pain is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The Veteran does not have a current disability manifested by hair loss, and hair loss is not a manifestation of an undiagnosed illness or a chronic multisymptom illness.

2.  The Veteran's dizziness, confusion, and fatigue have all been attributed to a known clinically diagnosed service-connected psychiatric disability.
CONCLUSIONS OF LAW

1.  A disability manifested by hair loss is not the result of an undiagnosed illness or a chronic multi symptom illness and was not incurred or aggravated in service.  38 U.S.C.A. §§ 1110, 1113(b), 1117, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2012).

2.  A disability manifested by dizziness, confusion, and fatigue is not the result of an undiagnosed illness or a chronic multi symptom illness and was not incurred or aggravated in service.  38 U.S.C.A. §§ 1110, 1113(b), 1117, 5107(b); 38 C.F.R. §§ 3.303, 3.317.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

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, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist the Veteran in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

Under the VCAA, VA 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) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in her possession that pertains to the claim.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

The United States Court of Appeals for Veterans Claims (Court) has also held 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).

In a pre-adjudication letter dated in October 2005, the RO notified the Veteran of the evidence needed to substantiate her claims of service connection for a disability manifested by hair loss and a disability manifested by dizziness, confusion, and fatigue.  This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist her in obtaining and the evidence it was expected that she would provide.  Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002).

The claimant's Veteran status has been substantiated.  She was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of her claims, in a March 2006 letter.  

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate her claim.  38 U.S.C.A. § 5103A; 38 C.F.R. 
§ 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to her claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).  

VA obtained the Veteran's service treatment records and all of the identified relevant post-service private medical records.  The Veteran has not reported, and the evidence does not otherwise reflect, that she has received any relevant post-service VA treatment or any additional relevant private medical treatment for her claimed disabilities.  In addition, the Veteran was afforded VA examinations to assess the nature and etiology of her claimed hair loss, dizziness, confusion, and fatigue, and opinions have been obtained concerning the etiology of these problems.

In its March 2012 remand, the Board instructed the agency of original jurisdiction (AOJ) to, among other things, afford the Veteran a VA examination to obtain opinions as to the nature and etiology of her claimed hair loss, dizziness, confusion, and fatigue.  A VA examination was conducted in May 2012 and opinions were obtained concerning the nature and etiology of her claimed medical problems.  Thus, the AOJ substantially complied with all of the Board's relevant March 2012 remand instructions and VA has no further duty to attempt to obtain any additional records or conduct additional examinations with respect to the claims being decided at this time.  See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998).

Analysis

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.

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); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element for certain chronic disabilities listed in 38 C.F.R. § 3.309(a) (2012) is through a demonstration of continuity of symptomatology.  See Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429, at *6 (Fed. Cir. Feb. 21, 2013); 38 C.F.R. §§ 3.303(b), 3.309(a).

In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").

"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)).  Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")).

Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

For veterans with service in the Southwest Asia Theater of operations during the Persian Gulf War, service connection may also be established under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317.  Under this law and regulation, service connection may be warranted for a Persian Gulf veteran who exhibits objective indications of "a qualifying chronic disability" that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016.  38 C.F.R. § 3.317(a)(1).  For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection.  38 C.F.R. § 3.317(a)(2).

Medically unexplained chronic multi symptom illnesses are defined by a cluster of signs or symptoms and include, but are not limited to, chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome.  Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained.  38 C.F.R. § 3.317(a)(2)(i), (ii).

To obtain service connection for an undiagnosed illness or combination of undiagnosed illnesses, a veteran needs to show (1) that he or she is a Persian Gulf veteran; (2) who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) that have become manifest either during active military, naval or air service in the Southwest Asia Theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016 and (4) that such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.  38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a).

"Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification.  38 C.F.R. § 3.317(a)(3).  Signs or symptoms that may be manifestations of an undiagnosed illness or a medically unexplained chronic multisymptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders.  38 C.F.R. § 3.317(b).

For purposes of 38 C.F.R. § 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic.  The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest.  38 C.F.R. § 3.317(a)(4).

Notwithstanding the foregoing presumptions, a claimant is not precluded from establishing service connection with proof of direct causation.  38 U.S.C.A. § 1113(b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Disability Manifested by Hair Loss

In the absence of proof of present disability there can be no successful claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  See also Degmetich v. Brown, 104 F.3d 1328 (1997) (also interpreting 38 U.S.C. § 1131 as requiring the existence of a present disability for VA compensation purposes).

To be present as a current disability, there must be evidence of the condition at some time during the claim period.  Gilpin v. West, 155 F. 3d 1353, 1356 (Fed. Cir. 1998); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves).
In this case, the Veteran has reported that she experiences hair loss, which she contends began in service and has continued in the years since that time.  She is competent to report observable hair loss as well as a continuity of symptomatology.  See Jandreau, 492 F.3d at 1377; Buchanan, 451 F.3d at 1337.  Moreover, service treatment records include reports of hair loss, there is nothing to explicitly contradict the Veteran's reports, and they are not inconsistent with the evidence of record.  Thus, the Veteran's reports of hair loss in the years since service are deemed to be credible.  Nevertheless, as explained below, the evidence dated since her claim was received in October 2005 reflects that she does not have any current underlying disability manifested by hair loss and that hair loss is not due to an undiagnosed illness or a chronic multisymptom illness.

There is no clinical evidence of any private or VA medical treatment for hair loss in the years since service.  During the May 2012 VA examination, the Veteran reported that her hair was constantly coming out and that she found strands of her hair floating around.  The hair was not breaking, but was rather falling from the roots.  Such hair loss had begun approximately 7 years prior to the examination after her daughter was born in August 2004.  Although she had sought treatment for hair loss in the years since that time, she had never been given a diagnosis.

Examination revealed that the Veteran's hair was slightly thin on top, but the findings were not consistent with true hair loss or a disabling condition.  The Veteran herself reportedly admitted that her hair was only slightly thin.

The neurologist who conducted the May 2012 VA examination concluded that there was no diagnosis of any hair loss condition, and that the Veteran's slightly thin hair was within normal parameters.  Thus, the examiner opined that it was not likely ("less likely than not"/"less than 50/50 probability) that the Veteran's claimed condition of hair loss was caused by or the result of anything that occurred during service.  Also, there was no current medical evidence supporting a causal relationship and/or direct relationship between the Veteran's claimed hair loss and any environmental exposures in service and there was no evidence of any undiagnosed illness, diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, or diagnosable chronic multisymptom illness with a partially explained etiology.  These opinions were based on the fact that the Veteran's normal condition was to have thin hair and that there was no pathology or diagnosis of any hair loss condition.

The May 2012 opinion was based upon an examination of the Veteran and a review of her medical records and reported history (including the lay evidence of hair loss since service) and is accompanied by a specific rationale that is not inconsistent with the evidence of record.  Thus, this opinion is adequate and entitled to substantial probative weight.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed).

The Veteran has contended she has a current disability manifested by hair loss.  Specifically, she has claimed that her hair loss is related to a thyroid disability. However, as a lay person, she can only comment as to symptoms and immediately-observable relationships.  She lacks the expertise in this case, not involving such an immediately observable cause-and-effect relationship, to diagnose a specific disability manifested by hair loss or to conclude that her current hair loss is related to a thyroid disability.  Rather, it would require medical expertise to evaluate her symptoms, consider all the potential causes, and determine that one was a more likely cause than another.  Hence, the Veteran's opinion on this question is not competent evidence.  38 C.F.R. § 3.159(a)(1), (2) (2012).

There is no other evidence of any current disability manifested by hair loss during the claim period, and the Veteran has not alluded to the existence of any such evidence.  A diagnosis is not always necessary to establish service connection.  In this respect, the Board notes that the Veteran's reports of a continuity of symptomatology since service have been found to be both competent and credible.  Nevertheless, an award of service connection on this basis is nonetheless precluded because there is no evidence of any current disability manifested by hair loss that is among the chronic conditions listed in 38 C.F.R. § 3.309(a).  Service connection on the basis of a continuity of symptomatology may only be granted if a claimed disability is among this list of chronic conditions.  See Walker, 2013 WL 628429, at *6. 

In sum, there is no adequate evidence of a post-service disability manifested by hair loss at any time during the claim period.  Thus, in light of the lack of evidence of a diagnosed disability, the weight of the evidence is against a finding of a current disability.  For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim and the claim of service connection for a disability manifested by hair loss must be denied.  See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57.

Disability Manifested by Dizziness, Confusion, and Fatigue

The Veteran claims that she experiences a disability manifested by dizziness, confusion, and fatigue and she contends that these symptoms began in service and that there has been a continuity of symptomatology since service.  She is competent to report dizziness, confusion, and fatigue, as well as a continuity of symptomatology.  See Jandreau, 492 F.3d at 1377; Buchanan, 451 F.3d at 1337.  Moreover, service treatment records include reports of confusion and fatigue, there is nothing to explicitly contradict the Veteran's reports, and they are not inconsistent with the evidence of record.  Thus, the Veteran's reports of dizziness, confusion, and fatigue in the years since service are credible.  

However, service connection on the basis of a continuity of symptomatology is only possible if a claimed disability is among the chronic conditions listed in 38 C.F.R. § 3.309(a).  See Walker, 2013 WL 628429, at *6.  As explained below, the only post-service medical opinions of record indicate that the Veteran's current dizziness, confusion, and fatigue are related to her already service-connected psychiatric disability.  These symptoms have not been attributed to any separately diagnosed disability, including any chronic disability listed in 38 C.F.R. § 3.309(a).  Thus, an award of service connection on the basis of a continuity of symptomatology since service for the Veteran's current dizziness, confusion, and fatigue is precluded.

The examiner who conducted the May 2012 VA examination opined that the Veteran's dizziness, confusion, and fatigue were not likely ("less likely than not"/"less than 50/50 probability") caused by or the result of service.  Rather, the dizziness, confusion, and fatigue were symptoms of anxiety, posttraumatic stress disorder (PTSD), and depression, respectively.  They were not separate conditions in and of themselves.  The examiner reasoned that the Veteran's description of her dizzy spells (i.e. the room shifting and then returning to baseline) was not physiologic and was not consistent with being lightheaded from conditions such as low blood pressure or vertigo.  Rather, her description was consistent with anxiety, as opposed to any pathology or diagnosis of any condition of dizziness or vertigo.

With respect to the Veteran's confusion, the examiner explained that it was not consistent with any pathological condition or diagnosis due to confusion as in difficulty thinking.  Rather, it was more consistent with inattention than with true confusion.  The confusion appeared to be part of the entire spectrum of the Veteran's PTSD.

Further, as for fatigue, the examiner explained that the Veteran described vegetative symptoms of depression.  The evidence of record showed that fatigue began when the Veteran had an infant.  This was consistent with fatigue from the ordinary sleep deprivation that any new parents undergo.  Given that the Veteran still reported fatigue at the time of the May 2012 examination, it appeared that her depression likely had its onset when she had an infant and she was describing current symptoms of depression.  There was no pathology or diagnosis of any condition other than fatigue as a symptom, as opposed to a condition in and of itself.

Moreover, the examiner opined that there was no medical evidence to support a causal relationship and/or direct relationship between the Veteran's claimed dizziness, confusion, and fatigue and any environmental exposure event in service.  Also, there was no evidence of any undiagnosed illness, diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, or diagnosable chronic multisymptom illness with a partially explained etiology.  The examiner reasoned that all of the Veteran's claimed conditions were representative of symptoms of other conditions with a clear and specific etiology and diagnosis.  Thus, the Veteran's claimed dizziness, confusion, and fatigue were not related to any specific exposure event experienced during service in Southwest Asia.

The May 2012 opinions were all based upon an examination of the Veteran and a review of her medical records and reported history (including the lay evidence of dizziness, confusion, and fatigue since service) and are accompanied by specific rationales that are not inconsistent with the evidence of record.  Thus, these opinions are adequate and entitled to substantial probative weight.  See Nieves-Rodriguez, 22 Vet. App. at 304. 

Although the Veteran has contended that her current dizziness, confusion, and fatigue are the result of a separate disability, such as thyroid problems, she again lacks the necessary medical expertise to make such a conclusion.  Thus, her opinion concerning the etiology of her current dizziness, confusion, and fatigue is not competent evidence.  38 C.F.R. § 3.159(a)(1), (2).

Thus, the preponderance of the evidence indicates that the Veteran's current dizziness, confusion, and fatigue are all attributed to known diagnoses, including anxiety, depression, and PTSD.  Therefore, entitlement to service connection on the basis of an undiagnosed illness or a chronic multi symptom illness is precluded in this case.  

There is no other evidence of any current disability manifested by dizziness, confusion, or fatigue that is separate and distinct from the Veteran's diagnosed psychiatric disability, and the Veteran has not identified any such evidence.  In sum, the preponderance of the evidence supports a conclusion that the Veteran's  reported dizziness, confusion, and fatigue are not due to an undiagnosed illness or chronic multisymptom illness.  Rather, such complaints are related to her diagnosed anxiety, depression, and PTSD.  Service connection has already been granted for PTSD (also claimed as depression and anxiety).

In reaching its decision in this appeal, the Board has resolved reasonable doubt in the Veteran's favor, where applicable.  The record does not show that the evidence is so evenly balanced as to warrant service connection for any separately diagnosed disability manifested by dizziness, confusion, or fatigue.  Hence, the appeal is denied.  38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. § 3.303.


ORDER

Entitlement to service connection for a disability manifested by hair loss is denied.

Entitlement to service connection for a disability manifested by dizziness, confusion, and fatigue is denied.


REMAND

Once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

The Veteran contends that she experiences a current disability manifested by jaw pain.  Service treatment records include April and May 2005 reports of treatment for jaw pain.  An examination revealed diffuse muscle tenderness of the jaw.  Diagnoses of bilateral jaw discomfort with bruxism and temporomandibular dysfunction were provided.  The Veteran has reportedly experienced jaw pain ever since service.

The Veteran was afforded a VA examination in April 2009 to assess the nature and etiology of any current disability manifested by jaw pain.  The examiner who conducted the examination concluded that the Veteran had popping of her temporamandibular joints and pain on the left, but did not have any loss of function.  There was no evidence of acid damage to the teeth, as would be seen with gastroesophageal reflux disease.  Occlusal wear consistent with bruxism was noted on the posterior teeth.  The examiner opined that it was likely ("at least as likely as not") that the Veteran's temporomandibular problems were congenital.

In light of the fact that the April 2009 examiner did not provide any rationale for his opinion and did not address whether there was any congenital disability superimposed on the Veteran's congenital jaw condition in service, the Board remanded the issue of entitlement to service connection for a disability manifested by jaw pain in order to obtain a new opinion as to the nature and etiology of the claimed disability.

In May 2012, a VA dentist opined that the Veteran's claimed jaw pain was not likely ("less likely than not"/"less than 50 percent or greater probability) incurred in or caused by any in-service injury, event, or illness.  She explained that there was no condition of congenital temporomandibular joint syndrome.  Thus, the issue of whether the Veteran's condition was a congenital disease or defect was moot.  Regardless, the examination findings were not consistent with the condition of temporomandibular joint disease in any way.  The Veteran's jaw popping, as noted on examination, was not a pathological finding in and of itself, and her other complaints could easily be attributed to her bruxism.  During the May 2012 examination, she clearly stated that her current condition existed prior to enlistment and was not changed in any appreciable way by service.  Thus, it was not likely ("less likely than not"/"less than 50/50 probability) that her jaw pain was caused by or the result of temporomandibular joint disease (whether congenital or otherwise) since there was nothing in the evidence of record to support a diagnosis of this condition,  Rather, it was likely ("more likely than not") that all of the Veteran's symptoms were easily explained by her bruxism.

The May 2012 opinion is inadequate because it is unclear as to whether the opinion specifically pertained to the Veteran's diagnosed bruxism.  Moreover, to the extent that the opinion may have pertained to the bruxism, the rationale that accompanies the opinion alludes to the conclusion that the Veteran's jaw problems existed prior to service and were not aggravated in service.  

However, the Veteran is presumed have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at examination for entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated.  38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012).

Although the Veteran is competent to report a history of jaw problems prior to service, a veteran's report of history, even when related by a medical professional, without an independent basis in the record, is insufficient to rebut the presumption of soundness.  Miller v. Brown, 11 Vet. App. 345 (1998).  There is no other evidence of a pre-existing jaw disability and the Veteran's February 1993 entrance examination was normal other than for defective vision and a left knee scar.   Thus, the evidence is not clear and unmistakable that a jaw disability pre-existed service and was not aggravated in service, and the Veteran was presumed sound.  38 U.S.C.A. § 1111. 

Therefore, a remand is necessary to obtain a new opinion as to the etiology of the Veteran's current jaw pain.

Accordingly, the case is REMANDED for the following action:

1.  Ask the VA dentist who provided the May 2012 opinion to review the claims file, including this remand and any relevant records contained in the Virtual VA system, and provide a new opinion as to the etiology of the Veteran's current disability manifested by jaw pain. 
For each current disability manifested by jaw pain identified (i.e. any such disability diagnosed since October 2005, including bruxism), the opinion provider shall answer the following question:

Is it at least as likely as not (50 percent probability or more) that the current disability had its onset in service, is related to the Veteran's jaw symptoms in service, or is otherwise related to a disease or injury in service?

In formulating the above opinion, the opinion provider must acknowledge and comment on all disabilities manifested by jaw pain diagnosed since October 2005 (including bruxism), all instances of treatment for jaw problems in the Veteran's service treatment records (including the April and May 2005 reports of treatment for jaw pain), and the Veteran's reports of a continuity of symptomatology in the years since service.  For purposes of the above opinion, the opinion provider is advised that the Veteran is presumed to have been in sound condition when she entered service.  

The opinion provider must provide reasons for each opinion given.  

The opinion provider is advised that the Veteran is competent to report her symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions.  If the opinion provider rejects the Veteran's reports regarding symptoms, the opinion provider must provide a reason for doing so.  
If the opinion provider determines that he or she cannot provide an opinion without resorting to speculation, the opinion provider shall explain the inability to provide an opinion, identifying precisely what facts could not be determined.  In particular, he or she shall comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion.  Jones v. Shinseki, 23 Vet. App. 382, 389 (2010).  (The AOJ shall ensure that any additional evidentiary development suggested by the opinion provider be undertaken so that a definite opinion can be obtained.)

If the May 2012 dentist is unavailable or otherwise unable to provide the requested opinion, the Veteran should be afforded a new VA examination to obtain the necessary opinion.

2.  The AOJ shall review the opinion/examination report to ensure that it contains the information and opinion requested in this remand and is otherwise complete.

3.  If any benefit sought on appeal remains denied, the AOJ shall issue a supplemental statement of the case.  After the Veteran is given an opportunity to respond, the case shall be returned to the Board.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
Thomas H. O'Shay
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs