Citation Nr: 1310186 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 06-17 079 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi THE ISSUE Entitlement to service connection for temporomandibular joint (TMJ) syndrome. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran had service in the National Guard from March 1975 to June 2004. That service included active duty for training (ACDUTRA) from May to September 1975 and from April to August 1984, as well as active duty (AD) from February 1985 to November 1991, from March 1995 to March 1999, and from October 2001 to April 2002. During that time, he served for 3 months as a health care specialist and for one year and 4 months as a medical non-commissioned officer. He also took a 4-month operating room specialist course. In September 2008, the Veteran had a hearing at the RO before the undersigned Veterans Law Judge of the Board of Veterans' Appeals (Board/BVA). This type of hearing is often and more commonly referred to as a Travel Board hearing. In October 2009, and again in February 2012, the Board remanded this claim to the RO via the Appeals Management Center (AMC) for further development and consideration. Even more recently, in August 2012, the Board also requested an expert opinion from a dental specialist with the Veterans Health Administration (VHA). The designee provided his response opinion in October 2012. The Board sent the Veteran a copy of this opinion in December 2012 and gave him 60 days to submit additional evidence and/or argument in response to it. FINDINGS OF FACT 1. The most persuasive evidence indicates a chronic TMJ disorder did not initially manifest during the Veteran's active military service. 2. The most persuasive evidence also is against finding that his current TMJ disorder is in any way related to his service, either insofar as having incepted during his service or alternatively being secondarily related to his service, meaning caused or permanently exacerbated by a service-connected disability. CONCLUSION OF LAW His TMJ disorder is not the result of disease or injury incurred in or aggravated by his active military service and is not proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C.A. §§ 101(22)-(23) , 1110, 1131, 5103, 5103A, 7109 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.6, 3.303, 3.310, 20.901 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist the Veteran with this Claim Prior to consideration of the merits of the Veteran's appeal, the Board must determine whether VA has met its duty-to-notify-and-assist obligations in the development of this claim. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. After reviewing the record, the Board finds that VA has satisfied this duty. In May 2002, VA received the Veteran's claim, and there is no concern as to having provided him an appropriate application form or regarding the completeness of his application. Following receipt of that application, VA notified him of the information and evidence necessary to substantiate and complete his claim, including insofar as the evidence he needed to provide versus the evidence VA would attempt to obtain for him. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA informed him of the requirements for establishing his entitlement to service connection for this claimed TMJ disorder, as well as how a "downstream" disability rating and effective date are determined, should service connection be granted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). After provision of that notice, VA also fulfilled its duty to assist him in obtaining identified and available evidence necessary to substantiate his claim. To this end, VA obtained or ensured the presence of the following relevant evidence: his service treatment and personnel records, records concerning his VA treatment from February 2000 through November 2011, the transcript of his March 2006 hearing at the RO before a local Decision Review Officer, the transcript of his September 2008 hearing at the RO before the undersigned Veterans Law Judge of the Board, April 2009 reports from R. P. C., Jr., M.D., C. D. H., D.M.D., and G. M. K., D.D.S., and the October 2012 expert opinion of the VHA dental specialist. Also, in August 2002 and June 2010, VA examined the Veteran for still additional medical comment regarding the nature and etiology of any TMJ disorder found to be present. The VA examination reports indicated the examiners reviewed his medical history in making this critical determination, documented his dental conditions, and rendered diagnoses and opinions consistent with the remainder of the evidence of record. Therefore, the Board concludes the VA examinations are adequate for rating purposes, especially since they have been supplemented by the October 2012 expert opinion of the VHA dental specialist. See 38 C.F.R. § 4.2 (2009); 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 the examination or opinion is adequate). In sum, the Veteran has been afforded a meaningful opportunity to participate effectively in the development of his claim. He has not identified any outstanding evidence that could support his claim, so still needing to be obtained, and there is no evidence of any VA error in notifying or assisting him with his claim that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication of his claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (wherein the U. S. Supreme Court held that VCAA notice and assistance errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran bears this burden of proof of not only establishing error but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his claim). There is no such pleading or allegation in this instance. Accordingly, the Board will proceed to the merits of the appeal. The Merits of the Appeal During his October 2006 and September 2008 hearings and in additional correspondence with VA, the Veteran contended that his TMJ disorder first manifested as clicking and popping of his left jaw in 2002, while in service. He said these symptoms have persisted during the several years since, thereby establishing the required relationship or correlation with his military service to justify the granting of service connection. After considering the claim in light of the evidence of record and applicable law, however, the Board finds that the preponderance of the evidence is against the claim, so the appeal must be denied. The Veteran may be awarded service connection for this claimed disability by showing it resulted from a disease or an injury incurred in or aggravated by his active military service in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Active military, naval, or air service includes not only active duty (AD), but also any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from disease or injury incurred in or aggravated in the line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from injury, though not disease, incurred in or aggravated in the line of duty, also when a cardiac arrest or cerebrovascular accident occurs during such training. 38 U.S.C.A. §§ 101(21), (24), 106; 38 C.F.R. § 3.6(a), (d). Reserve and National Guard service generally means ACDUTRA and INACDUTRA. ACDUTRA is full-time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Basically, this refers to the two weeks of annual training, sometimes referred to as "summer camp," which each Reservist or National Guardsman must perform each year. It can also refer to the Reservist's or Guardsman's initial period of training. INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Basically, this refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year and is often referred to as "weekend warrior" training. These drills are deemed to be part-time training. To establish status as a "Veteran" based upon a period of ACDUTRA, a claimant must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). The mere fact that a claimant has established status as a "Veteran" for other periods of service (e.g., AD) does not obviate the need to establish that he is also a "Veteran" for purposes of the period of ACDUTRA if the claim for benefits is premised on that period of ACDUTRA. Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). Similarly, in order for him to achieve "Veteran" status and be eligible for service connection for disability claimed during his inactive service, the record must establish that he was disabled from an injury, though not disease, incurred or aggravated during INACDUTRA. See Id.; Paulson v. Brown, 7 Vet. App. 466, 470 (1995). Moreover, National Guard duty is distinguishable from other Reserve service in that a member of the National Guard may be called to duty by the governor of their state. "[M]embers of the National Guard only serve the federal military when they are formally called into the military service of the United States[; a]t all other times, National Guard members serve solely as members of the State militia under the command of a state governor." Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). Therefore, to have basic eligibility for Veterans benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, see 10 U.S.C. § 12401, or must have performed "full-time duty" under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505. Id. Certain diseases are considered chronic (i.e., permanent), per se, and therefore will be presumed to have been incurred in service if manifested to a compensable degree within some specified time after service, usually 1 year and usually to at least 10-percent disabling. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). This presumption also does not apply to ACDUTRA and INACDUTRA service, only AD. The same is true of the presumptions of soundness and aggravation. See Smith v. Shinseki, 24 Vet. App. 40 (2010); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Establishing entitlement to direct service connection generally requires: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the injury or disease in service and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). Service connection also may be granted on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In the case of aggravation, however, the Veteran is only compensated for the amount of disability he has over and above that existing prior to the aggravation. If chronicity (i.e., permanency) of disease or injury in service is not shown, or legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim. 38 C.F.R. § 3.303(b). Under § 3.303(b), an alternative method of establishing the second and third Shedden elements is through a demonstration of continuity of symptomatology. See also 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 his 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 Hickson v. West, 12 Vet. App. 247, 253 (1999) (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection). To establish a showing of chronic disease in service, or within a presumptive period per § 3.307, a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic," is required. 38 C.F.R. § 3.303(b). Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Id. In-service notation of a condition does not require medical evidence where the condition is of a type as to which a lay person's observation is competent. However, although prong (3) does not require medical nexus evidence, because it would not necessarily follow that there is a relationship between any present disability and the continuity of symptomatology demonstrated, medical evidence is required to demonstrate such a relationship unless such a relationship is one as to which a lay person's observation is competent. Moreover, a recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). TMJ Syndrome is not amongst the conditions listed in § 3.309(a) as being chronic, therefore is not subject to this continuity of symptomatology pleading exception provided by § 3.303(b). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). See also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). When, for example, a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). As held in Davidson, section 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. 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" such as actual treatment records). But see, too, Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (for non-combat Veterans providing non-medical related lay testimony regarding an event during service, or whether the event in question is not alleged to have occurred in combat, Buchanan is distinguishable; the lack of documentation in service records must be weighed against the Veteran's statements). A Veteran is competent to report what he can observe and feel through the senses. See Layno. When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Once evidence is determined to be competent, however, the Board must additionally determine whether the evidence also is credible, as only then does it ultimately have probative value. See Layno (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")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). To this end, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id., at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing when he has testified. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). Turning now to the facts and circumstances of this case. Service connection is in effect for the following disorders: gastroesophageal reflux disease (GERD), evaluated as 30-percent disabling; residuals of an anterior cruciate ligament tear, right knee, evaluated as 20-percent disabling; right shoulder tendonitis, evaluated as 20-percent disabling; degenerative disc disease of the lumbar spine, evaluated as 20-percent disabling; left shoulder tendonitis, evaluated as 10-percent disabling; left and right hand flexor tendonitis, each evaluated as 10-percent disabling; a chronic ligament tear, status post fracture of the left ankle, evaluated as 10-percent disabling; Morton's neuroma of the feet, evaluated as 10-percent disabling; tinnitus, evaluated as 10-percent disabling; left ulnar neuropathy, evaluated as 10-percent disabling; left patellofemoral syndrome, evaluated as 10-percent disabling; bilateral hearing loss disability, evaluated as 0-percent disabling, so noncompensable; tympanic membrane perforation, evaluated as noncompensable; allergic rhinitis, status post septoplasty, evaluated as noncompensable; an appendectomy scar, evaluated as noncompensable; tinea pedis, evaluated as noncompensable; and herpes simplex, evaluated as noncompensable. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). For the reasons already discussed, the Board acknowledges the Veteran is competent to give testimony about what he experienced during and since the conclusion of his service. For example, he is competent to report that he began having jaw pain and noticing a popping or clicking sound in his jaw while in service and that he has continued to experience those symptoms ever since. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). As explained, in certain instances, lay evidence can be competent and sufficient to establish a diagnosis of a condition. Indeed, competent lay evidence may be used to establish a medical condition, including causation. King v. Shinseki, No. 2011-7159 (Fed. Cir. Dec. 5, 2012) (the Federal Circuit Court discussing 38 U.S.C.A. § 5107(b), 38 C.F.R. § 3.307(b), and its prior holdings in Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); and Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009)). The evidence shows the Veteran had medical training and experience in service as a health care specialist and medical non-commissioned officer. But nothing in the record suggest he received any specialized training or acquired any medical expertise in evaluating and determining causal connections for dental conditions. An opinion may be reduced in probative value even where the statement comes from someone with medical training, if the medical issue requires special knowledge. See Black v. Brown, 10 Vet. App. 279 (1997). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the diagnosis and onset of TMJ syndrome falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Therefore, the Veteran's opinion, without more, is not dispositive. 38 C.F.R. § 3.159(a). To reiterate, competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence if contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In deciding this appeal, the Board must weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11. The Board is mindful that it cannot make its own independent medical determination, and that there must be plausible reasons for favoring one medical opinion over another. Evans v. West, 12 Vet. App. 22, 31 (1998). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings. The probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). In this regard, contemporaneous evidence has greater probative weight than a history reported by the Veteran. Curry v. Brown, 7 Vet. App. 59, 68 (1994). However, medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). The Veteran's service treatment records (STRs) show that in June 2002 he experienced popping in his left jaw, which he said had been occurring since 1996. He added that a dentist had told him that his jaw was out of alignment. The health care provider indicated the etiology of this problem was unknown. In July 2002, the Oral Surgery Service indicated the Veteran had palpable popping in his left TMJ. He was treated with conservative therapy - a soft diet for 10 to 14 days and hot and cold compresses. It was also noted that he needed an evaluation of tooth number 19, due to furcation involvement. In July 2004, the Dental Service again noted popping in his left jaw. Despite those symptoms, however, there were no findings of chronic, identifiable, TMJ disorder. Indeed, VA regulations recognize that not every abnormality is a manifestation of a chronic or permanent disorder. 38 C.F.R. § 3.303(b). In August 2001, during treatment by the VA Dental Service, the Veteran was found to have carious lesions, bone loss, periodontal destruction, and subgingival calculus. There were no findings of a TMJ disorder. During his August 2002 VA dental examination, the Veteran reported that while on active duty in February 2002 he began experiencing popping of his jaw with infrequent pain. On examination, there was marked popping of his left jaw on opening and closing, as well as occasional slight popping of his right TMJ. The relevant diagnosis was disc displacement without reduction, left TMJ. VA treatment records, dated from May 2003 to November 2011, show the Veteran has a history of TMJ arthralgia and that he has been prescribed Ibuprofen for the associated pain. In April 2009, there was bilateral TMJ inflammation. In January 2009, the Veteran was examined by G. K. S., M.D. Dr. S.'s examination included history taking, a physical examination, X-rays and listening to the Veteran's joints with a stethoscope and Doppler auscultator. The Veteran reported that he had had symptoms of TMJ pain and popping dating back to his service. On a TMJ Questionnaire, he reported that the onset of his problems had occurred with the wearing of heavy military headgear. Following the examination, Dr. S.'s diagnosis was bilateral TMJ disc displacements with subsequent joint capsulitis and facial myalgia. Dr. S. also noted the Veteran had parafunction and malocclusion, along with cervicalgia and forward head posture. In April 2009, R. P. C., Jr., M.D., and C. D. H., D.M.D., suggested the Veteran was experiencing TMJ osteoarthritis/myalgia. The Veteran informed Dr. C. that his jaw pain had been present since service. Dr. H. noted the Veteran was edentulous in the left posterior mandible and that X-rays exhibited some beaking of the right condylar head. The left condyle was reportedly normal. Dr. H. opined that the Veteran's TMJ myalgia was associated with missing teeth. In June 2010, the Veteran was examined by VA to determine the nature and extent of any TMJ disorder found to be present. He stated that his mouth frequently got tired and that his jaw popped when he opened and closed his mouth. He reported that his symptoms had been present since 1985 in service. A clinical and radiologic examination revealed numerous missing teeth, including all molars on the lower left side. There was significant popping and clicking on opening and closing the jaw with a slight deviation to the right; however, panoramic radiology did not reveal any TMJ pathology. Following the examination, the diagnosis was TMJ disorders. The examiner indicated he could not comment on the etiology of this disorder without resorting to mere speculation. Statements that are inconclusive as to the origin of a disorder generally cannot be employed as suggestive of a linkage between the disorder and the Veteran's military service. See Warren v. Brown, 6 Vet. App. 4, 6 (1993); Sklar v. Brown, 5 Vet. App. 104, 145-6 (1993). However, these types of opinions also cannot be used to rule out this purported correlation, either. Ultimately, noncommittal opinions like this amount to "nonevidence," neither for nor against the claim, because service connection may not be based on speculation or remote possibility. See generally Bloom v. West, 12 Vet. App. 185 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). See also 38 C.F.R. § 3.102 (when considering application of the benefit-of-the-doubt doctrine, reasonable doubt is one within the range of probability, as distinguished from pure speculation or remote possibility). Indeed, in past decisions the Court also had held that saying a condition "may" be related to the Veteran's military service is tantamount to saying it just as well "may not" be related to his service, so, because of this equivocality, also an insufficient basis to grant service connection. See Obert v. Brown, 5 Vet. App. 30 (1993); Tirpak v. Derwinski, 2 Vet. App. 609 (1992); Winsett v. West, 11 Vet. App. 420 (1998). An etiological opinion, however, has to be viewed in its entire context and not characterized solely by the medical professional's choice of words. See Perman v. Brown, 5 Vet. App. 237, 241 (1993); Lee v. Brown, 10 Vet. App. 336, 338 (1997). Moreover, additional precedent cases have been more recently issued shedding further light on how to properly assess and determine the probative value of these noncommittal opinions. Notably for instance, in Hogan v. Peake, 544 F.3d 1295 (Fed. Cir. 2008), the Federal Circuit Court indicated a determination regarding service connection requires consideration of all pertinent medical and lay evidence, including medical opinions that do not state definitively when a particular disorder or condition began; therefore, classifying a medical opinion as "non-evidence" is "troubling." In Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009), the Federal Circuit Court more recently had held that an examiner's statement, which recites the inability to come to an opinion, provides neither positive nor negative support for service connection; therefore, it is not pertinent evidence regarding service connection. The remainder of the report, however, must be considered as evidence of whether the disability was incurred in service. An even more recent precedent case also admonished the Board for relying on medical opinions that also were unable to establish this required linkage, without resorting to mere speculation, as cause for denying the Veteran's claims. See Jones v. Shinseki, 23 Vet. App. 382 (2010). In Jones, the Court noted it was unclear whether the examiners were unable to provide this requested definitive medical comment on etiology because they actually were unable to since the limits of medical knowledge had been exhausted or, instead, for example, needed further information to assist in making this determination (e.g., additional records and/or diagnostic studies) or other procurable and assembled data. The Court in Jones acknowledged there are instances where a definitive opinion cannot be provided because required information is missing or can no longer be obtained or current medical knowledge yields multiple possible etiologies with none more likely than not the cause of the claimed disability. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (noting the Board need not obtain further medical evidence where the medical evidence "indicates that determining the cause is speculative"). The Court in Jones held, however, that in order to rely upon a statement that an opinion cannot be provided without resort to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record. And this remained unclear in this particular instance. The Court has held that, once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence ... is essential for a proper appellate decision"). See, too, Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Furthermore, VA must ensure that any medical opinion, including one that states no conclusion can be reached without resorting to speculation, is "based on sufficient facts or data." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2009). Therefore, it must be clear, from either the examiner's statements or the Board decision, that the examiner has indeed considered "all procurable and assembled data," by obtaining all tests and records that might reasonably illuminate the medical analysis. Daves v. Nicholson, 21 Vet. App. 46, 51 (2007). When the record leaves this issue in doubt, it is the Board's duty to remand for further development. The examiner may also have an obligation to conduct research in the medical literature depending on the evidence in the record at the time of examination. See Wallin v. West, 11 Vet. App. 509, 514 (1998). The Jones Court acknowledged that an "examination is not inadequate merely because the examiner states he or she cannot reach a conclusion without resort to speculation." Jones, 23 Vet. App. at 391. The Court also found that "VA is not bound to proceed through multiple iterations of medical opinions until it declares that no further examinations would assist the claimant[,]" which, in the Court's view, was "inherent in a finding that the duty to assist has been fulfilled." Id. The Court in Jones explained that the duty to assist, rather, requires VA to obtain all relevant information that may reasonably be obtained before the Board may rely on a VA medical examiner's opinion to deny a claim and enumerates the steps under which the duty to assist may apply. Id., at 388. The Court first found that the duty to assist applies when "an examiner specifically identifies additional information that would facilitate a more conclusive opinion." The Court then found that "it must be clear on the record that the inability to opine on questions of diagnosis and etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion." Id., at 389. The Court in Jones went on to point out that, while an opinion that diagnosis or etiology was not possible without resorting to speculation was just as much a medical conclusion as a firm diagnosis or a conclusive opinion, a bald statement that it would be speculative to render an opinion as to etiology or diagnosis was ambiguous and, thus, it must be clear that the examiner has considered "all procurable and assembled data," by obtaining all relevant tests and records that might reasonably illuminate the medical analysis. Id., at 390. Therefore, here, rather than again remanding this claim and possibly not obtaining a more definitive opinion on this determinative issue of causation, the Board instead elected in August 2012 to obtain an expert opinion from a VHA dental specialist. 38 U.S.C.A. § 7109; 38 C.F.R. § 20.901. Following review of the records, the VHA dental expert indicated in his October 2012 report that he did not find any supporting evidence that the Veteran's TMJ disease was initially manifested during a period of active military service or that it was due to, the result of, or had been aggravated by any of his service-connected disabilities. Indeed, he stated that his review of the records did not reveal any link or cause for the TMJ syndrome. Therefore, he concluded that it was unlikely the Veteran's TMJ syndrome had been manifested initially during any of his periods of active military service or that it was due to, the result of, or had been aggravated by any of his service-connected disabilities. In so concluding, this VHA dental expert found no radiographic evidence of any damage to the TMJ joint or of any trauma or fractures during the Veteran's service that could have caused damage to his TMJ joints and in turn account for his current disability. This commenting VHA dental expert found not proximate event associated with the onset of the TMJ syndrome or any event that made such syndrome better or worse. He thus completely disassociated this disorder from the Veteran's service. In reviewing the evidence on the whole and determining its relative probative value, the Board assigns the most weight to this opinion of the VHA dental expert. He rendered his opinion after reviewing the totality of the evidence. While Drs. S. and C. mention a history of TMJ problems dating back to the Veteran's service, that history was reported by the Veteran, himself, rather that gleaned from their independent review of his claims file. This, alone, however, is not determinative of an opinion's probative value because in Kowalski v. Nicholson, 19 Vet. App. 171 (2005), the Court clarified that the Board may not disregard a favorable medical opinion solely on the rationale that it was based on a history given by the Veteran. Rather, as the Court explained further in Coburn v. Nicholson, 19 Vet. App. 427 (2006), reliance on a Veteran's statements renders a medical report not credible only if the Board rejects the statements of the Veteran as lacking credibility. When deciding claims, the Board has to make an express credibility finding regarding lay evidence, such as testimony and statements the Veteran proffers. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Veteran has given somewhat varying accounts of just how long he has experienced the symptoms attributable to his TMJ syndrome. As notable examples, a STR dated in June 2002 indicates he had experienced the popping in his left jaw since 1996, whereas the report of his August 2002 VA dental examination indicates he had first experienced popping of his jaw and pain in February 2002, while in service. Still yet, during his June 2010 VA examination he reported having relevant symptoms since 1985, so since even longer. Ultimately, though, the Board is not discounting the history of this disability he has provided. Rather, the Board finds the VHA dental expert's mention of no inciting event at any point during the Veteran's active military service as most persuasive. Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative weight than a history reported by the Veteran). Moreover, a careful reading of the reports from Dr. C., Dr. H., and Dr. S. shows that, despite their diagnoses, they do not offer an opinion as to the etiology of the Veteran's TMJ disorder. See Leshore v. Brown, 8 Vet. App. 406, 409 (1995) (holding that evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by the examiner, does not constitute the competent evidence needed to support a claim of entitlement to service connection). Indeed, they make no independent findings as to a relationship between this TMJ disorder and his military service. The only competent medical opinion instead comes from the VHA dental expert and is clearly against such a cause-and-effect relationship or correlation. Therefore, the Board concludes that the preponderance of the evidence is against a finding of a nexus between the Veteran's current TMJ disorder and his service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). Inasmuch as the preponderance of the competent and credible evidence of record is against a finding of a nexus to service, the Veteran does not meet the criteria for service connection. Accordingly, service connection for TMJ disorder is not warranted, and the appeal of this claim must be denied. In arriving at this decision, the Board has considered the doctrine of reasonable doubt. However, this doctrine is only invoked where there is an approximate balance of evidence that neither proves nor disproves the claim. Here, though, for the reasons and bases discussed, the preponderance of the evidence is against the Veteran's claim. Therefore, this doctrine is inapplicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER The claim of entitlement to service connection for TMJ syndrome is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs