Citation Nr: 1310642 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 08-10 067 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for temporomandibular joint (TMJ) dysfunction. REPRESENTATION Appellant (the Veteran) is represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran had active military service from December 1980 to February 1986. This appeal to the Board of Veterans' Appeals (Board) arises from a June 2007 rating decision in which the Regional Office (RO) denied service connection for a dental condition (claimed as TMJ disorder). The Veteran filed a notice of disagreement (NOD) in September 2007, and the RO issued a statement of the case (SOC) in March 2008. The Veteran filed a substantive appeal (via a VA Form 9) in March 2008. In June 2009, the Veteran testified at a hearing before the undersigned using video-conferencing technology; a transcript of that hearing is of record. When this case was most recently before the Board in August 2009, it was decided in part and remanded in part for additional evidentiary development. The case has since been returned to the Board for further appellate action. In the August 2009 decision and remand, the Board also remanded a claim for service connection for a left foot disability. Service connection was later established for left foot bunion and pes planus. See July 2011 rating decision. That issue is no longer before the Board for appellate review. After the July 2011 supplemental statement of the case was issued, the Veteran submitted additional records, to include a private treatment record from December 2011, along with a waiver of consideration of such evidence in the first instance by the RO. However, in August 2011 she also submitted argument and a duplicate service treatment record without such a waiver of initial consideration of such evidence by the RO. Any pertinent evidence submitted without a waiver must be referred to the RO. 38 C.F.R. § 20.1304(c) (2012). "Evidence is not pertinent it if does not relate to or have a bearing on the appellate issue or issues." Id. This additional evidence is essentially duplicative of evidence already within the claims files. Thus, it is not prejudicial for the Board to address this evidence without a waiver. The Board also notes that in June 2012 the Veteran submitted a statement from her employer regarding her left foot. As stated above, the Veteran was service-connected for left foot bunion and pes planus in a July 2011 rating decision. Therefore, if the Veteran is seeking an increased rating for her service-connected left foot disabilities, she is advised to file a claim with the RO. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. No defects, infirmities, or TMJ dysfunction were noted at the time of the Veteran's examination, acceptance, and enrollment in service. 2. The evidence linking current TMJ dysfunction etiologically to service is in relative equipoise with the evidence against the claim. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, TMJ dysfunction was incurred in service. 38 U.S.C.A. § 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Clams Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). As the Board is granting service connection for TMJ dysfunction, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). 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). TMJ dysfunction is not a "chronic disease" listed under 38 C.F.R. § 3.309(a), therefore 38 C.F.R. § 3.303(b) does not apply. See Walker v. Shinseki, 708 F.3d 1331, (Fed. Cir. 2013). Historically, the Veteran filed the instant claim in February 1996 at which time she stated that during her tenure in the service, root canals were performed on all of her back teeth because they were sensitive to cold; consequently, all the root canals abscessed and the teeth had to be pulled but were never replaced by partials. As a result of having so many missing teeth, she asserts in pertinent part that she developed facial pain in her jaws. Every person employed in the active military, naval, or air service shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C.A. §§ 1111, 1137 (West 2002 & Supp. 2012). In July 2003, the VA General Counsel issued a precedent opinion holding that to rebut the presumption of soundness in 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See VAOPGCPREC 3-2003 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id. See also Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). The Veteran's STRs contain no examination at service entrance. Accordingly, no defects, infirmities, or TMJ dysfunction were noted at the time of the Veteran's examination, acceptance and enrollment in service, and the presumption of soundness attaches. See 38 U.S.C.A. § 1111 (West 2002 & Supp. 2012). See also Doran v. Brown, 6 Vet. App. 283, 286 (1994). The Veteran first complained of TMJ pain in January 1983. There is no prior reference to TMJ pain or dysfunction. The Veteran reported that the pain seemed to intensify at night and seemed to have occurred following extraction of the upper teeth (#s 14, 15, 16) on her left side. A February 1983 record notes that she said she had bruxism as a child and had some TMJ pain following an automobile accident in January 1980 with additional pain following multiple teeth extraction in November 1983. A December 1984 consultation record reflects that the Veteran said she had a long-standing history of bruxism and clenching during stressful periods. After objective examination, the diagnosis was TMJ dysfunction syndrome. Tylenol was recommended for pain along with moist heat on the affected side and occlusal splint therapy. In a December 1995 letter, Dr. A.D.D., a private dentist, noted that the Veteran had a history of TMJ dysfunction. He opined that the disability was a direct result of posterior verticality being compromised. He said that the loss of molars contributed to this vertical collapse and thus the increased pressure on the TMJ. He recommended fabricating upper and lower removable partial dentures to reestablish posterior verticality. The report of a May 1996 VA dental examination also reflects TMJ pain dysfunction syndrome. The VA examiner stated that this disability was consistent with service-connected trauma. The report of a March 2007 VA dental examination reflects a diagnosis of TMJ pain dysfunction syndrome. The Veteran reported service related trauma of falling on stairs in 1980/1981; the examiner noted that it was uncertain if this was connected to or associated with TMJ. The VA examiner opined that "[i]t is as likely as not that the development of [TMJ dysfunction syndrome] is caused by bruxism and other parafunctional habits and it is somewhat likely that provision of a prosthetic posterior dentition may add control to her discomfort, if she presents for preparation of prostheses and will accept night guard or other prosthetic aids." During the June 2009 Board hearing, the Veteran testified that she had to have several teeth extracted during military service, which aggravated her TMJ problem. In addition, her representative asserted that the stress of the military could have also aggravated the condition. The Board remanded this case, in pertinent part, for a VA examination that was accomplished in March 2011. The March 2011 VA examination report showed extensive review of the evidence of record; to this point the VA examiner noted that military dental visits showed a continuum of visits for dental pain, dental decay, and attempts to salvage carious teeth which were refused by the Veteran who opted for extraction multiple times although advised against such by military dentist. The Veteran reported a history of bruxism as a child. The VA examiner noted that the Veteran had therapeutic intervention with an "occlusal stent" prescribed in 1985 with a requested one week follow-up in a recall appointment which was not attended by the Veteran; there was no further record of her acceptance of the stent. The examiner diagnosed TMJ dysfunction syndrome. The March 2011 VA examiner opined that there was no evidence in the recorded dental/oral documentation or in the testimony of the Veteran that the disability of TMJ is the result of any disease or injury incurred or aggravated during military service. The examiner stated that the aforementioned letter by Dr. A.D.D. in 1995 with a conclusion of what was frequently termed "posterior bite collapse" was not readily apparent in the clinical picture as there was no anterior component of the syndrome, and adequate interarch dimension existed as well as lack of loss of vertical dimension or decrease of normal facial height. The examination note of 1996 presented the Veteran's statement of previous "trauma" which was not apparent in any documentation during service or any testimony of the Veteran which supported any previous claim of trauma. The examiner also stated that there was no evidence that the disability preexisted the Veteran's service; although her testimony seemed to indicate a parafunctional bruxism "as a child" and there was no evidence that the TMJ/loss of dentition were aggravated beyond their natural progression. The examiner opined that the Veteran having denied to accept treatment options that might have salvaged the dentition and maintained occlusion also chose to fail to return for occlusal stent therapy. The examiner concluded that the records did not support the initiation of the syndrome of TMJ because of loss of teeth, which the military dentists attempted to preserve, nor had there been any lack of confirmation of the diagnosis by any practitioner or any failure to provide conventional, gold standard therapies for her problem dentition and TMJ. The Board notes that the Veteran also submitted a private medical record from December 2011 in which the referring examiner stated that the Veteran had a history of [TMJ] since 1983-1984, had many root canals done for abscessed teeth, and her [TMJ] worsened. The private examiner in December 2011 stated that the Veteran was diagnosed with TMJ dysfunction syndrome in December 1984; she was currently complaining of generalized facial and jaw pain that increased with jaw function; and that she tried a variety of conservation treatments over the years with equivocal success. In pertinent part the examiner diagnosed TMJ. The evidence above shows that the Veteran has diagnosed TMJ. However, the record reflects conflicting medical opinions as to whether there is a relationship between the TMJ and service. Supportive of the Veteran's claim are Dr. A.D.D.'s statement in a December 1995 letter that the disability was a direct result of posterior verticality being compromised; the report of a May 1996 VA dental examination in which the examiner stated that this disability was consistent with service-connected trauma; and the report of a March 2007 VA dental examination with the opinion that "[i]t is as likely as not that the development of [TMJ dysfunction syndrome] is caused by bruxism and other parafunctional habits..." Conversely, the March 2011 VA examination and medical opinion given based upon review of the Veteran's STRs and private medical records, including those prepared by Dr. A.D.D. and the prior VA examination, states unequivocally that the Veteran's TMJ is not related to her service. The findings of a physician are medical conclusions that the Board cannot ignore or disregard. Willis v. Derwinski, 1 Vet. App. 66 (1991). However, the Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App 614 (1992). As true with any piece of evidence, the credibility and weight to be assigned to these opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board is obligated to analyze the credibility and probative value of all evidence, account for the evidence that it finds persuasive or unpersuasive, and provide reasons for its rejection of any material evidence favorable to the Veteran. Meyer v. Brown, 9 Vet. App. 425 (1996); Eddy v. Brown, 9 Vet. App. 52 (1996); Gabrielson v. Brown, 7 Vet. App. 36 (1994); Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson, 2 Vet. App. at 618; Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Greater weight may be placed on one examiner's opinion than another depending on factors such as the reasoning employed by the physicians and whether (and the extent to which) they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). In this case, the Board acknowledges flaws with each of the medical opinions of record. Dr. A.D.D. did not indicate review of the claims files or any other medical record before offering the aforementioned impression. The May 1996 examiner also did not appear to review the claims file but merely provided a cursory medical history of "1982 multiple extractions - posterior, TMJ". Moreover, the Board notes that the May 1996 and March 2007 VA examiners did not provide rationale for their opinions. In assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). In fact, a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). While the March 2011 VA examiner provided a thorough review of the claims file and supported his opinion with clinical rationale, the examiner appears to have based his opinion against a nexus to service in part on the Veteran's refusal to undergo recommended therapies in service. Thus, his rationale appears to acknowledge the onset of TMJ dysfunction in service, but finds that it would not have occurred had she followed medical advice at the time. Despite the acknowledged expertise of the examiner, this is difficult to accept as anything other than speculation. The March 2011 examiner specifically found that TMJ dysfunction did not predate service. Thus, the initial diagnosis of the disorder in service, with subsequent ongoing symptomatology and post-service diagnosis of the same condition is strong evidence linking the current TMJ dysfunction to service. If it is true that the Veteran could have averted the onset of TMJ dysfunction by accepting the medical treatment she was advised to undergo in service, this is not a reason to find against the claim. The Veteran's failure to follow medical advice does not constitute willful misconduct 38 C.F.R. § 3.301 (2012). Even if the assertion is true, this does not preclude a grant of service connection. Based on the medical and lay evidence in this case, the Board finds the evidence for and against a relationship between current TMJ dysfunction and service are in relative equipoise. Resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for TMJ dysfunction is warranted. ORDER Service connection for TMJ dysfunction is granted. ____________________________________________ Lloyd Cramp Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs