Citation Nr: 1320596 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 09-07 765 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to service connection for a jaw disorder, to include nerve damage and a dental disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The Veteran served on active duty from April 1988 to April 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the RO in Fargo, North Dakota. The Veteran's claim was remanded for further development in February 2011, and an etiological opinion was requested from a specialist with the Veterans Health Administration (VHA) in January 2013. FINDING OF FACT A jaw disorder, to include nerve damage and a dental disorder, was not manifest during service or within one year of separation, and any current jaw disorder, to include any associated neurological condition, is not attributable to service. CONCLUSION OF LAW A jaw disorder, to include nerve damage and a dental disorder, was not incurred in or aggravated by service and may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board's analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) Before addressing the merits of the issue, the Board notes that 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); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified in May 2008 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. These letters accordingly addressed all notice elements, and the original notification predated the initial adjudication by the AOJ/RO in July 2008. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. Nothing more is required in this case. As for the duty to assist, the Veteran's available service treatment records have been obtained. The Veteran has not identified, nor does the record otherwise indicate, any existing, pertinent evidence that has not been obtained. The record also presents no basis for further development to create any additional evidence to be considered in connection with the matter currently under consideration. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that the duty to assist requirement has been satisfied. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. See Green v. Derwinski, 1 Vet. App. 121 (1991). Here, as directed by the Board in January 2013, an opinion from a specialist with the VHA was provided in March 2013, so as to ascertain whether any current disorder is etiologically-related to his period of service, to include an in-service fall. To that end, when VA undertakes to provide an opinion, it must ensure that the report is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VHA opinion is adequate, as the examiner included a thorough review of the file and provided findings relevant to the issue at hand. The Veteran's complaints and lay history were also considered and discussed, as was prior medical evidence of record. A complex rationale was provided with the opinion. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA opinion with respect to the issue on appeal has been met. See 38 C.F.R. § 3.159(c)(4) (2012). As there is no indication in the record that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Service connection The Veteran has claimed entitlement to service connection for a jaw disorder, to include lock jaw, nerve damage, and a dental disorder. In pertinent part, the Veteran maintains that his jaw disorder is due to a fall in service, at which time he fell on his chin and sustained a severe jaw injury. To that end, the Court held that, in order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) 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 disease or injury. See generally Hickson v. West, 12 Vet. App. 247, 253 (1999). Where a veteran served continuously for 90 days or more during a period of war or during peacetime service after December 31, 1946, and an organic disease of the nervous system becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of it during the period of service. This presumption 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. If a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b) (2012). The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a), which does not include shin splints. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Congenital and developmental defects are not disabilities within the meaning of applicable regulations providing for payment of VA disability compensation benefits. 38 C.F.R. §§ 3.303, 4.9 (2012). However, VA's General Counsel has held there is a distinction under the law between a congenital or developmental "disease" and a congenital "defect" for service connection purposes in that congenital diseases may be recognized as service connected if the evidence as a whole shows aggravation in service within the meaning of VA regulations. A congenital or developmental defect, on the other hand, because of 38 C.F.R. § 3.303(c), is not service connectable in its own right, though service connection may be granted for additional disability due to disease or injury superimposed upon such defect during service. VAOPGCPREC 82-90. In this case, service treatment records, other than dental records, indicate that the Veteran did sustain a fall in June 1993. A dental report from January 1993 indicated the surgical removal of numbers 1 and 32. Another dental report indicated that the Veteran was missing numbers 16 and 17, removed in 1988. The Veteran has also been awarded service connection for a laceration to the chin. The Veteran stated that he experiences popping in his jaw, and pain when he bites or chews food which is hard or tough. The Veteran underwent a VA examination in June 2008. It was noted that the Veteran did not have any pain, mobility, or concern with his teeth. There was tenderness to palpation of the anterior fibers of the temporalis muscle, the left temporomandibular (TM) joint, and the right digastric muscle. He had very hypertrophic right and left masseter and temporalis muscles. He did not experience joint pain during opening or closing, though he could elicit some joint popping during opening. The examiner concluded that the Veteran's main source of discomfort was due to muscle pain and joint overload, which was due to severe clenching. However, his service dental records were not available at that time. Since then, service dental records were obtained and associated with the file, and the Board remanded the Veteran's claim for additional VA medical opinions in February 2011. The Veteran was afforded a VA examination in March 2011 to address dental, oral, and neurological complaints. The Veteran reported jaw pain, on and off since his fall in 1993. He stated that his jaw "jammed" during this incident, and that the pain had worsened over the past three months at the right TM joint. He further asserted that jaw pain occasionally led to ear aches and headaches. On examination, the head and face were normal, the scar was noted on the chin, and no neurologic deficits were observed. It was noted that, while the Veteran's service treatment records indicated a chin laceration, there was no mention of jaw pain or continued headaches following the fall. There was, however, mention of tension headaches in 2003. In 2005, it was noted that the Veteran reported headaches during deployment, but did not check the "Now" box to indicate that headaches continued thereafter. Based on this evidence, in addition to a 2007 post-deployment questionnaire in which headaches were not reported, the examiner concluded that there were no residual neurological deficits due to the 1993 accident, and that his headaches were less than likely related to the Veteran's reported accident. Following a dental examination conducted on the same day, the examiner noted that service X-rays and current studies were reviewed. An X-ray from April 1988 indicated slightly less flattening of the left condyle, though the surrounding structure was unchanged. The TM joint structure appeared to be within normal limits in all radiographs. It was noted that the Veteran's left condylar eminence was short and shallow in inclination. This would account for his ability to pop the joint at terminal position. The examiner noted that this was anatomic, and unchanged in appearance since 1988. It was further noted that TM joints were clear in a medical note following his chin laceration. Based on a review of the Veteran's military dental records, which made no reference to limitation of jaw movement or a problem with his TM joints, it was determined that the Veteran's discomfort was caused by muscle pain and possible joint overload due to severe clinching. However, in its January 2013 VHA opinion request, the Board noted that these examiners failed to indicate whether the Veteran's current clinching issue was related to his period of active service, to include the fall in 1993. Further, it was unclear to the Board whether the flattening of the left condyle may have occurred during the Veteran's long period of active service, and if so, whether such action may have led to his current jaw discomfort. In response, a VHA opinion was provided in March 2013. Per the specialist, it was less likely that any such currently-diagnosed jaw, neurological (to include headaches) or dental disorder had its onset during the Veteran's period of service, or is otherwise etiologically-related to his active service, to include the fall documented in 1993. The specialist indicated that all notes were reviewed regarding the laceration on the Veteran's chin, in addition to his dental records. After this review, the specialist found no evidence of injury to the Veteran's TM joint, muscles, or nerves. It was noted that the Veteran underwent multiple examinations during his military career, and at no time did he complain of symptoms related to the TM joint, or of pain relating to the muscles of mastication. In fact, the note documenting his chin laceration specifically denied any acute distress, or tooth/gum injury. The specialist pointed out that bruxism is multifactorial, and in most cases, transient. As such, the specialist did not agree that this disorder was caused by injury, and found that the Veteran's malocclusion was not caused by a fall in 1993 (as there was no mention of a mandible fracture at that time). Instead, the examiner determined that the Veteran's malocclusion was most likely developmental in nature. As such, not a single medical professional of record has opined that the Veteran's claimed disorder was incurred during service, is causally-related to an in-service accident, or, in the case of any neurological component, was manifested to a compensable degree within one year following separation. As to the Veteran's assertions that he currently suffers from a jaw disorder which is etiologically-related to his period of active duty, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that lay evidence is one type of evidence that must be considered, and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. Acknowledgement is given to the Veteran's assertions that his jaw disorder began during service, as the result of a fall. In that regard, he is deemed competent to report symptoms of a jaw disorder, such as pain or other neurological complaints. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, laypersons are competent to diagnose a disability only if (1) the condition is simple to identify (such as a broken leg), (2) he is reporting a contemporaneous medical diagnosis, or (3) his description of symptoms at the time supports a later diagnosis by a medical professional. Id. Here, the Veteran has not demonstrated competence to provide an opinion as to the onset or cause of a complex medical diagnosis, and the claimed issue is not a disorder whose cause is simple to identify, especially given the Veteran's complaints of joint and neurological discomfort. See Jandreau. Based on the foregoing, in order to establish service connection, the record would have to contain competent medical evidence of record linking the Veteran's claimed disorder(s) to his period of active service, to include an in-service fall. The Board may not base a decision on its own unsubstantiated medical conclusions but, rather, may reach a medical conclusion only on the basis of independent medical evidence in the record. Neither the Board nor the Veteran is competent to supplement the record with unsubstantiated medical conclusions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Conversely, health professionals are experts and are presumed to know the requirements applicable to their practice and to have taken them into account in providing a diagnosis. See Colvin. Despite the presence of current diagnoses throughout the appellate period and multiple VA opinions, the preponderance of the medical evidence is against the finding of a relationship between the Veteran's currently-diagnosed jaw disorder and service. In sum, the most probative evidence of record does not establish that the Veteran's jaw disorder is related to service, to include the documented, in-service fall. Moreover, associated neurological manifestations were not demonstrated within one year after separation. There are no contemporaneous records of any complaints, findings, treatment, or diagnosis of any chronic jaw disorder during service, to include the service treatment record which documented his treatment following the accident in question. Following multiple VA examinations and a VHA opinion, the record lacks a probative medical opinion linking a jaw disorder to the Veteran's period of active duty. Further, insofar as the Veteran's TMJ disorder represents a congenital defect, there is no evidence of any additional disability due to disease or injury superimposed upon such defect during service. While the Board has taken the Veteran's statements regarding jaw symptomatology into account, he has not demonstrated the medical competency to provide an etiological link between any related disorder and an in-service accident. The record also does not establish that there was actual damage to the bones of the jaw during service that would entitle the Veteran to service connection for loss of teeth or other dental complications for compensation purposes. Missing teeth may be compensable for rating purposes under Diagnostic Code 9913 (loss of teeth, due to loss of substance of body of maxilla or mandible without loss of continuity). However, the Note immediately following states that such ratings apply only to bone loss through trauma or disease such as osteomyelitis, and not to the loss of the alveolar process as a result of periodontal disease, since such loss is not considered disabling. 38 C.F.R. § 4.150, Diagnostic Code 9913 (2012). As such, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). Therefore, the preponderance is against the Veteran's claim for entitlement to service connection for a jaw disorder, to include nerve damage and a dental disorder, and the claim must be denied. ORDER Entitlement to service connection for a jaw disorder, to include nerve damage and a dental disorder, is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs