Citation Nr: 1325496 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 07-10 266A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a jaw disability manifested by jaw pain, to include bruxism. ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran served on active duty from May 1993 to September 2005. This matter initially came before the Board of Veterans' Appeals (Board) from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In that decision, the RO, in part, denied entitlement to service connection for jaw pain. The RO in Indianapolis, Indiana currently has jurisdiction over the Veteran's claim. In March 2012 and March 2013, the Board remanded this matter for further development. The Board observes that, during the course of the appeal, a 100 percent disability rating was assigned from September 27, 2005 for the Veteran's service connected disabilities. FINDING OF FACT The Veteran has a jaw disorder which is etiologically related to service CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for a jaw disability are met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Given the favorable disposition of the claim for service connection for jaw disability, the Board finds that all notification and development action needed to fairly adjudicate such claim has been accomplished. The Board is granting service connection for a jaw disability, and this is the greatest benefit the Veteran can receive under the circumstances. Any failure to notify or assist her is inconsequential and, therefore, at most, no more than harmless error. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). In making all determinations, the Board must fully consider all lay assertions of record. A layperson is competent to report on the onset and continuity of observable symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board's duty is to assess the credibility and weight of the evidence. See Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran contends that service connection is warranted for jaw pain. She contends that she experiences a current disability manifested by jaw pain. Service treatment records include April and May 2005 reports of treatment for jaw pain. An examination revealed diffuse muscle tenderness of the jaw. Diagnoses of bilateral jaw discomfort with bruxism and temporomandibular dysfunction (TMJ) were provided. The Veteran has reportedly experienced jaw pain ever since service. The Veteran was afforded a VA examination in April 2009 to assess the nature and etiology of any current disability manifested by jaw pain. The examiner concluded that the Veteran had popping of her temporomandibular joints (TMJ) and pain on the left, but did not have any loss of function. There was no evidence of acid damage to the teeth, as would be seen with gastroesophageal reflux disease. Occlusal wear consistent with bruxism was noted on the posterior teeth. The examiner opined that it was likely ("at least as likely as not") that the Veteran's TMJ problems were congenital. The April 2009 examiner failed to provide a rationale for his opinion and did not address whether there was any congenital disability superimposed on the Veteran's congenital jaw condition in service, the Board remanded the issue of entitlement to service connection for a disability manifested by jaw pain in order to obtain a new opinion as to the nature and etiology of the claimed disability. In May 2012, a VA dentist opined that the Veteran's claimed jaw pain was not likely ("less likely than not"/"less than 50 percent or greater probability) incurred in or caused by any in-service injury, event, or illness. She explained that there was no condition of congenital TMJ syndrome. Thus, the issue of whether the Veteran's condition was a congenital disease or defect was moot. Regardless, the examination findings were not consistent with the condition of TMJ in any way. The Veteran's jaw popping, as noted on examination, was not a pathological finding in and of itself, and her other complaints could easily be attributed to her bruxism. During the May 2012 examination, she clearly stated that her current condition existed prior to enlistment and was not changed in any appreciable way by service. Thus, it was not likely ("less likely than not"/"less than 50/50 probability) that her jaw pain was caused by or the result of TMJ (whether congenital or otherwise) since there was nothing in the evidence of record to support a diagnosis of this condition. Rather, it was likely ("more likely than not") that all of the Veteran's symptoms were easily explained by her bruxism. The May 2012 opinion was also inadequate because it is unclear as to whether the opinion specifically pertained to the Veteran's diagnosed bruxism. To the extent that the opinion may have pertained to the bruxism, the rationale that accompanies the opinion alludes to the conclusion that the Veteran's jaw problems existed prior to service and were not aggravated in service. In April 2013, a VA dentist opined that the Veteran's current symptoms were pain in the body of her mandible which was dull, bilateral and constant. Her jaw felt tired when she chewed and she felt a tightness in her jaws. She pointed to the body of her mandible and not to her TMJ when describing her symptoms. She hears a clicking in both TMJs. The TMJs functioned well with no limitation on opening and no restrictions on her lateral movement. There was no excess wear noted on the occlusive surfaces of her teeth, so she did not suffer from bruxism. X-rays were unremarkable showing normal condyle and normal appearing TMJ. The examiner then assumed that the Veteran was in sound condition when she entered service. She opined that,"it is at least as likely as not (50 percent probability or more) that her jaw pain had its onset in the service. However the jaw pain is not related to a disease or injury while on active duty as a disease or injury did not occur. The April 2013 examiner opined that the Veteran's TMJ problems were congenital. The examiner failed to provide a rationale for his opinion and did not address whether there was any congenital disability superimposed on the Veteran's congenital jaw condition in service. The May 2012 examiner opined that there was no condition of congenital TMJ, and the issue of whether the Veteran's condition was a congenital disease or defect was moot. Thus, it was not likely ("less likely than not"/"less than 50/50 probability) that her jaw pain was caused by or the result of TMJ (whether congenital or otherwise) since there was nothing in the evidence of record to support a diagnosis of this condition. Rather, it was likely ("more likely than not") that all of the Veteran's symptoms were easily explained by her bruxism. Finally, the August 2010 VA dentist findings that the Veteran's jaw pain had its onset in the service, but was not related to a disease or injury while on active duty as a disease or injury did not occur. In short, there are three medical opinions that that the Veteran's TMJ problems were congenital; the Veteran did not have any congenital TMJ, and that it was more likely that all of the Veteran's symptoms were easily explained by her bruxism; and, finally that the Veteran's jaw pain had its onset in the service, but was not related to a disease or injury while on active duty. The Board finds that the evidence is at least in a state of relative equipoise in showing that the Veteran's current disability manifested by jaw pain was first manifested during service. While the medical opinions differ in regard to the cause of the jaw pain, they concur that it was shown during service and continues to the present time. Thus, the VA examinations are the most probative evidence of record addressing the issue. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). For this reason, the Board finds that service connection is warranted for a jaw disability manifested by jaw pain. The Board finds that the jaw pain is analogous to mandible malunion. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.310; See Davidson, 581 F.3d at 1316. Thus, by extending the Veteran the benefit of the doubt, the claim is granted. ORDER Service connection for jaw disability manifested by jaw pain, to include bruxism. is granted. ____________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs