Citation Nr: 1319428 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 05-28 685A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for chronic mandible arthritis. 2. Entitlement to an increased rating for bilateral mandibular fracture residuals with temporomandibular joint disorder (TMD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran had active service from July 1960 to October 1964. This matter came before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the St. Petersburg, Florida, Regional Office (RO). In November 2004, the RO denied an increased evaluation for the Veteran's bilateral mandibular fracture residuals. In May 2006, the RO denied service connection for both temporomandibular joint disorder and mandible arthritis. In September 2006, the RO granted service connection for temporomandibular joint disorder (TMD); recharacterized the Veteran's mandibular fracture residuals as bilateral mandibular fracture residuals with TMD; and assigned a noncompensable evaluation for that disability. The Veteran appealed the issue of entitlement to an increased (compensable) evaluation, which was subsequently granted, in part, and the issue of service connection for arthritis of the mandible. In August 2008, December 2010, and May 2012, the Board remanded the claims for additional development. In January 2008, the Veteran was afforded a hearing before Michael A. Herman, who is the Veterans Law Judge rendering the determination in this claim and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 2002). FINDINGS OF FACT 1. On April 8, 2013, prior to the promulgation of a decision in the appeal, VA received notification from the appellant that he desired to withdraw the issue of entitlement to an increased rating for bilateral mandibular fracture residuals with TMD. 2. The Veteran does not have chronic mandible arthritis that was caused his service, or which was caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the issue of entitlement to an increased rating for bilateral mandibular fracture residuals with TMD by the appellant have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. Chronic mandible arthritis was not caused by service, and was not caused or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased Rating The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the appellant has withdrawn this appeal. The Veteran's statement was submitted to the Board by way of a statement (VA Form 21-4138), in which he stated that he was satisfied with the RO's decision in its March 2013 rating decision (which increased his evaluation for service-connected bilateral mandibular fracture residuals with TMD). The Veteran stated, "I am writing this statement in support of my claim to inform the Appeals Management Center that I am satisfied with [the] decision made. I no longer want to pursue this matter." Thus, as there remain no allegations of errors of fact or law for appellate consideration, the Board does not have jurisdiction to review the appeal and it is dismissed. II. Service Connection The Veteran asserts that he is entitled to service connection for chronic mandible arthritis. During his hearing, held in January 2008, the Veteran testified that he had jaw symptoms that included pain, popping, and a feeling like sand was in his jaw. He asserted that a private physician, Dr. R, told him that he had arthritis of the mandible that was related to his inservice jaw injury. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that 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 which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection may also be granted for arthritis, when it is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. Feb. 21, 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. Service connection may be granted, on a secondary basis, for a disability, which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2012). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b) . The Veteran's service treatment reports show that in April 1964, he was hospitalized for about one month, with a diagnosis of fracture, simple, mandible, bilateral, after he fell in a recreation room at struck his jaw on a billiard table. He underwent a closed reduction utilizing interdental wiring and intermaxillary elastic traction. As for the post-service medical evidence, it consists of VA and non-VA reports, dated between 1993 and 2012. This evidence shows that in 1993, the Veteran received treatment for jaw pain. In 1994, he was found to have TMJ (temporomandibular joint syndrome). An October 1994 VA examination report shows that X-rays did not result in a finding of arthritis. They showed "no discontinuity of bone structure." A July 1995 VA examination report contains diagnoses noting bilateral TMJ disorder, bilateral fracture of the mandible well-healed (by history), with no residuals, and longstanding bruxism (by history). See also January 1997 VA examination report. An August 2004 VA examination report shows that the examiner concluded that the Veteran's fracture sites are well-healed and could not be identified. A report from A.J.F., D.M.D., dated in October 2004, shows that the Veteran was noted to have symptoms that included facial and jaw pain, headaches, and difficulty in opening and closing his mouth. The report notes that X-rays revealed a minor osteophytic change of the left condyle. The diagnoses included myofascial pain dysfunction, chronic stress-induced muscle hyperactivity, bruxism, dysfunctional ligaments, and unstable occlusion. A January 2006 VA examination report shows that the examiner noted that X-rays were interpreted as normal. The fracture sites were well-healed and could not be visualized. The diagnosis was bilateral TMJ disorder. Statements from Dr. R, dated in January 2008 and February 2009, note that the Veteran has TMJ disorder related to previous trauma/fracture. A July 2009 VA examination report does not note arthritis of the mandible. The examiner noted that the most recent X-rays stated that there was no fracture, no dislocation, and no focal bone destructive process of the bilateral TMJs. Reports from J.G, D.C., and J.H.G. D.M.D., dated in 2011, do not include findings of arthritis of the mandible. They note that the Veteran has bilateral TMJ syndrome and/or TMJ disorder. VA progress notes, dated between 2009 and 2013, show that the Veteran received a number of treatments for jaw symptoms as well as periodontal treatments, with diagnoses that include tempormandibular joint disorders, and chronic periodonitis. A VA examination report, dated in July 2012, shows that the examiner indicated that the Veteran's claims file had been reviewed. The diagnoses were "healed mandibular bilateral fracture, 1963, no residuals," "TMJ joint sounds, right side (normal progression)," and "limited mandibular ROM (range of motion), (normal progression age related)." The examiner emphasized that degenerative or traumatic arthritis was not documented. He indicated that radiographic studies of the Veteran's mandible and condyles have been reviewed and in each image there is no evidence of a fracture of either condyles or the mandibular body, which he felt was entirely consistent with well-healed, non-displaced, minor fractures over three decades after injury. A detailed discussion of the X-ray findings followed. He added that there were radiology reports supporting the diagnosis of arthritic change, but the imaging available for review does not support the diagnosis of arthritic changes to the condyles beyond normal age progression. The examiner went on to state that there was no increase in severity due to the well-healed mandibular fractures experienced in 1963 or the etiology thereof, and the Veteran's normal age progression that was observed. With regard to the diagnosis (X-ray findings) of Dr. A.J.F. in 2004, the examiner noted that Dr. F stated that more radiographs are needed before any further conclusions could be made. He then observed that Dr. F's position was consistent with his opinion and current radiographs that are now available (i.e., in 2012). In that regard, the examiner stated that the diagnosis of chronic arthritis tentatively rendered in 2004 is most accurately described as presumptive, and as requiring further investigation. He indicated that this conclusion was consistent with the current radiographs that showed no arthritic changes beyond minor osteophytic change observed to the left condyle. He added that it is not correct to say that the arthritis healed. To the contrary, the examiner emphasized that that further studies show no arthritic changes beyond normal age progression. He felt that any linkage between these findings, their etiology or severity in 2012, and the original traumatic event in 1963 would require resort to mere speculation. The Board finds that the claim must be denied. The Veteran was not shown to have arthritis of the mandible during service. Rather, the earliest post-service medical evidence of any relevant findings is dated in 2004. This is about 41 years after separation from active duty service. There is also no evidence that the Veteran has been experiencing chronic symptoms of any arthritic process of the mandible since service. He really makes no such contention. Put another way, service connection based on the theories of direct onset (38 C.F.R. § 3.303(a)), a presumption of service connection (38 C.F.R. § 3.307, 3.309), or continuity of symptomatology (38 C.F.R. § 3.303(b)) is not established. There is no competent opinion in support of the claim. In this regard, the only competent opinion of record is the July 2012 examiner's opinion, in which the examiner concluded that there were no arthritic changes beyond those attributable to normal age progression. Given the relatively minor nature of the in-service fracture, the span of over 40 years, and the relatively innocuous current radiological findings of the jaw/mandible, he explained that any attempt to etiologically link current findings with the Veteran's service would require resort to mere speculation. Current regulations provide that service connection may not be based on a resort to speculation, or even a remote possibility. See 38 C.F.R. § 3.102 (2012); see also Jones v. Shinseki, 23 Vet. App. 382 (2010); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Goss v. Brown, 9 Vet. App. 109, 114 (1996). Further, to the extent that it may be argued that the Veteran's service-connected bilateral mandible fracture with tempormandibular joint disorder may have caused or aggravated arthritis of the mandible, the July 2012 VA examiner's opinion indicates that service connection is not warranted on this basis. See 38 C.F.R. § 3.310. Specifically, the examiner concluded that there is no increase in severity due to the well-healed mandibular fractures experienced in 1963, and that there are no arthritic changes beyond minor osteophytic change observed to the left condyle. The examiner strongly believed that there were no arthritic changes beyond those due to normal age progression. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). 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, arthritis 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). Arthritis is not the type of conditions that are readily amenable to mere lay diagnosis or probative comment regarding their etiology, as the evidence shows that X-ray studies and other specific findings is needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). That is, although the Board readily acknowledges that Veteran is competent to report jaw pain and popping, there is no indication that the Veteran is competent to diagnose arthritis or to link any current diagnosis of arthritis of the mandible to his in-service injury or to a service-connected disability (TMJ). The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating dental disorder. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. The Board has considered the applicability of "benefit of the doubt" doctrine, however, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant the resolution of these matters on that basis. 38 U.S.C.A. § 5107(b). II. Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in August 2008 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. The August 2008 letter was sent to the Veteran after the RO's May 2006 decision that is the basis for this appeal. However, after issuing the notice letter discussed above, the RO reconsidered the appellant's claim, as evidenced by several supplemental statements of the case, most recently dated in January 2013. In addition, a review of the appellant's representative's submissions indicates an accurate understanding of the issue on appeal. These actions indicate actual knowledge on the part of the claimant, and that a reasonable person could be expected to understand from the notice what was needed. See Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (holding that VA cured any failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). The Board therefore finds that no prejudice to the Veteran will result from proceeding with adjudication without additional notice or process. Furthermore, as discussed below, it appears that VA has obtained all relevant evidence. Id. The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issue on appeal have been obtained and are associated with the Veteran's claims file. The RO has obtained the Veteran's VA and non-VA medical records. The Veteran has been afforded an examination, and an etiological opinion has been obtained. Most recently, in May 2012, the Board remanded this claim. The Board directed that records related to treatment for the Veteran's jaw, from the VA Medical Center (VAMC) in Tampa, FL from November 2010 to the present, be obtained, to include records related to dental treatment received on or about July 2011. VA progress notes, dated between 2009 and 2013, were subsequently obtained from the Tampa VAMC, and they have been associated with the claims file (virtual VA paperless file). In its remand, the Board further directed that a clarification be obtained from the August 2011 VA examiner, and that if that examiner was not available, that the Veteran be afforded another examination and that another opinion be obtained. This opinion was to include definitive statement as to whether the Veteran has arthritis of the mandible, and a discussion of the diagnosis of arthritic changes of the condyle, by private physician Dr. F., and as to whether any identified chronic mandible arthritic disorder had its onset during active service, is etiologically related to his mandibular trauma, or otherwise originated during active service, and/or is etiologically related to and/or increased in severity beyond its natural progression due to his service-connected bilateral mandibular fracture residuals with TMD. The requested examination was performed in July 2012. The requested opinions were obtained. Under the circumstances, the Board finds that there has been substantial compliance with its remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Board recognizes that the July 2012 VA examiner opined that he could not provide an opinion relating the Veteran's active service (injury) to any current arthritis of the mandible that he might have without resorting to mere speculation. This opinion does not support a grant of service connection. The fact that the opinion was couched in speculative terms does not undermine its probative value. Notably, Jones v. Shinseki, 23 Vet. App. 382, 290 (2010), the Court held that in relying on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the review of the evidence. The examiner provided such an explanation. He referenced the relatively minor nature of the in-service fracture, the span of over 40 years, and the relatively innocuous current radiological findings of the jaw/mandible. In January 2008, the Veteran was provided an opportunity to set forth his contentions during the hearing before a Veterans Law Judge (VLJ). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims recently held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the January 2008 hearing, the VLJ identified the issue on appeal. Information was also solicited regarding the circumstances of the Veteran's claim. The evidence as to what is necessary to establish service connection was discussed. The testimony does not indicate that there are any outstanding medical records available that would support his claim. Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim" were also fully explained. See Bryant, 23 Vet. App. at 497. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER The issue of entitlement to an increased rating for bilateral mandibular fracture residuals with TMD is dismissed. Service connection for arthritis of the mandible is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs