Citation Nr: 1328792	
Decision Date: 09/09/13    Archive Date: 09/17/13

DOCKET NO.  10-10 259	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to service connection for residuals of a fractured mandible.  


REPRESENTATION

Appellant represented by:	Missouri Veterans Commission


ATTORNEY FOR THE BOARD

S. D. Regan, Counsel









INTRODUCTION

The Veteran served on active duty from September 1960 to May 1964.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in October 2011 of a Department of Veterans Affairs (VA) Regional Office (RO).  

While on appeal in a decision in December 2012, the Board, in pertinent part, reopened and remanded the claim of service connection for residuals of a mandible fracture for further development.  


FINDING OF FACT

The Veteran suffered a mandible fracture in service.


CONCLUSION OF LAW

The criteria for service connection for residuals of a fractured mandible have been met.  38 U.S.C.A §§ 1131, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2013).  

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.  

As the Board is granting the claim of service connection for residuals of a mandible fracture, VCAA compliance need not be addressed further.  



REASONS AND BASES FOR FINDINGS AND CONCLUSION

Principles and Theories of Service Connection

A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service.  38 U.S.C.A. § 1131 (peacetime service).  

Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, the so called "nexus" requirement.  All three elements must be proved.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service.  This may be accomplished by affirmatively showing inception or aggravation during service.  38 C.F.R. § 3.303(a).  

Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service.  38 C.F.R. § 3.303(d).  

Evidentiary Standards

VA must give due consideration to all pertinent lay and medical evidence in a case where a veteran is seeking service connection.  38 U.S.C.A. § 1154(a).  As the Veteran was not in combat, the provisions of 38 U.S.C.A. § 1154(b) do not apply.  



Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and from the weight of the evidence.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997).

Competency is a question of fact, which is to be addressed by the Board.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007).

When the evidence is admissible, the Board must then determine whether the evidence is credible.  "Credible evidence" is that which is plausible or capable of being believed.  See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). 

If the evidence is credible, the Board, as fact finder, must determine the weight or probative value of the admissible evidence, that is, does the evidence tend to prove a material fact.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005).  If the evidence is not credible, the evidence has no probative value. 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran.  38 U.S.C.A. § 5107(b).

Evidence

The service treatment records show that in March 1963 the Veteran was hospitalized for oral surgery for a bilateral fracture of the mandible.  The Veteran stated that he had been assaulted by six assailants, resulting in the fractures of the mandible.  X-ray showed a fracture of the mandible.  The Veteran underwent a closed reduction of the fracture.  The final diagnosis was a simple fracture at the right angle and at the left symphysis menti of the mandible.  





On the medical history form on separation examination, it was noted that the Veteran suffered a fracture of the mandible in 1963 and that he had a complete recovery with no complications.  

After service, in June 2004 on a VA dental examination, the VA examiner stated that there was no bone loss of the mandible, maxilla, or hard palate.  It was noted that diagnostic studies were unremarkable.  The diagnosis was no residuals of a mandible fracture from forty years earlier.  

In March 2013 on VA examination, the Veteran stated that in service he was attacked by several men and he was hit in the face with a pipe, resulting in a broken jaw.  The Veteran also stated that he was hit in the face a second time after service.  The VA examiner stated the Veteran's jaw pain was less likely than not related to a fracture of the mandible in service.  

Analysis

The evidence shows that the Veteran suffered a fracture of the mandible in service, requiring oral surgery.  The final diagnosis was a simple fracture of the mandible.  

After service, on VA examination in June 2004, there were no residuals of the mandible fracture.  In March 2013 on VA examination, the VA examiner stated the Veteran's jaw pain was less likely than not related to a fracture of the mandible in service.  

The service treatment records show that the Veteran suffered a fracture of the mandible.  The provisions of 38 C.F.R. § 4.150, Diagnostic Code 9904, provide a noncompensable rating for slight malunion of the mandible.  







After considering all the evidence and resolving any doubt in the Veteran's favor, the Board finds that the Veteran has residuals of a fractured mandible incurred in service.  


ORDER

Service connection for residuals of a fractured mandible is granted.  



____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs