Citation Nr: 1331093 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 10-30 094 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fargo, North Dakota THE ISSUES 1. Entitlement to service connection for a hip disability, to include as residuals of a pelvic fracture. 2. Entitlement to service connection for bilateral internal temporamandibular joint (TMJ) derangement. REPRESENTATION Appellant represented by: Minnesota Department of Veterans Affairs ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The Veteran served on active duty from May 2002 to May 2007. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) regional office (RO) located in Sioux Falls, South Dakota. Jurisdiction was retained by the RO in Fargo, North Dakota. In December 2012 and April 2013, the Board remanded the Veteran's claims for further development. Such development has been completed and associated with the claims file, and these matters are returned to the Board for further review. FINDINGS OF FACT 1. The Veteran is not shown by the medical evidence of record to have a current right hip disability. 2. The Veteran's pelvic fracture injury preexisted service and was noted on entrance into service, there are no residuals of the preexisting injury, and her left hip Coxa Saltans does not constitute a residual of the preexisting injury. 3. The Veteran's internal TMJ derangement is not casually or etiologically related to a disease, injury, or incident in service. CONCLUSIONS OF LAW 1. Service connection for a bilateral hip disability, to include as residuals of a pelvic fracture, is not warranted. 38 U.S.C.A. §§ 1110, 1111, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2012). 2. Service connection for internal TMJ derangement is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) With regard to all of the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5102, 5103(a), 5103A, 5106 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is generally required to "notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided . . . that is necessary to substantiate the claim." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). As part of that notice, VA must "indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary . . will attempt to obtain on behalf of the claimant." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). The 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. See Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board finds that a March 2009 VCAA letter fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012). The March 2009 letter informed the Veteran of what information or evidence was needed to support her claims, what types of evidence the Veteran was responsible for obtaining and submitting to VA, and which evidence VA would obtain. The March 2009 notice also explained how VA assigns disability ratings and effective dates. See Dingess, supra. The Board also concludes that VA's duty to assist has been satisfied. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's service treatment records, VA treatment records, and private treatment records have been associated with the claims file. The Veteran has not identified any outstanding, relevant treatment records for VA to obtain. In this regard, the Board notes that in December 2012, the Board remanded the Veteran's claims so that, among other things, the Veteran could be provided with another opportunity to identify any outstanding treatment records. Pursuant to the Board's remand directive, in December 2012, the RO sent a letter to the Veteran requesting that she identify any outstanding treatment records relating to her claims, and to that end, provide completed Forms 21-4142 authorizations; the Veteran did not reply. Therefore, the Board finds that there has been substantial compliance with the Board's remand directive, and that the record contains sufficient evidence to make a decision on the Veteran's claims. See Stegall v. West, 11 Vet. App. 268 (1998). VA's duty to assist also includes the duty to provide a VA examination when the record lacks evidence to decide a veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established in-service event, injury, or disease, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). With regard to the Veteran's hip disability claim, she was provided with a VA examination in May 2009, but the examiner did not provide an etiological opinion. Therefore, in December 2012, the Board remanded the Veteran's claim for a new VA examination. Pursuant to the Board's remand directive, the Veteran was provided with a new VA examination in January 2013. Because the January 2013 VA examiner did not acknowledge the Veteran's post-service complaint of hip pain in July 2009, and because the diagnosis was not clear, in April 2013, the Board again remanded the claim for a VA medical opinion. A May 2013 VA medical opinion reflects that the examiner answered all of the questions posed by the Board. Therefore, the Board finds that the May 2009 and January 2013 VA examination reports, as clarified by the May 2013 VA medical opinion, are adequate upon which to base a decision with regard to the Veteran's hip disability claim, and that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). With regard to the Veteran's bilateral internal TMJ derangement claim, she was provided with a VA examination in May 2009, but the examiner did not provide an etiological opinion. Therefore, in December 2012, the Board remanded the Veteran's claim for a new VA examination. Pursuant to the Board's remand directive, the Veteran was provided with a new VA examination in January 2013. Because the January 2013 VA examiner did not address whether the Veteran's condition preexisted service, and if so, whether it was aggravated by service, in April 2013, the Board again remanded the claim for a VA medical opinion. A May 2013 VA medical opinion reflects that the examiner answered all of the questions posed by the Board. Therefore, the Board finds that the May 2009 and January 2013 VA examination reports, as clarified by the May 2013 VA medical opinion, are adequate upon which to base a decision with regard to the Veteran's bilateral internal TMJ derangement claim, and that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). As there is no indication 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), reversed on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that 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 Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology for certain chronic diseases after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2012). To establish a right to compensation for a present disability, a Veteran must show: "(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" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, and disorders noted at the time of 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. 38 U.S.C.A. § 1111 (West 2002). "When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service." Wagner v. Principi, 370 F.3d 1089, 1096-1097 (Fed. Cir. 2004); VAOPGPREC 3-2003 at 10-11 (July 16, 2003). The veteran 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. VAOPGCPREC 3-2003 at 10-11 (July 16, 2003). When a preexisting disease or injury is noted on the entrance examination report, 38 U.S.C.A. § 1153 provides that "[a] preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 C.F.R. § 3.306(a) (2012). With regard to veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where a pre-service condition underwent an increase in severity during service. 38 C.F.R. § 3.306(b) (2012); Cotant v. Principi, 17 Vet. App. 116, 124, 130 (2003). Temporary or intermittent flare-ups of symptoms of a preexisting condition alone do not constitute sufficient evidence for a non-combat veteran to show increased disability for section 1153 purposes unless the underlying condition worsened. Davis v. Principi, 276 F. 3d 1341, 1346- 47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). A. Hip Disability The Veteran served on active duty from May 2002 to May 2007. She claims that she has a hip disability as a result of a preexisting pelvic fracture injury that was aggravated by service, including due to the rigors of boot camp and other physical activity in service. The Veteran's service treatment records include copies of June 2001 private hospital records (dated prior to service) from the North County Regional Hospital reflecting treatment for a fractured pelvis due to a horse bucking her off and landing on her. X-rays showed fractures involving the superior pubic rami bilaterally and the right inferior pubic ramus. Likewise, a February 2002 entrance report of medical history reflects the physician noted the Veteran's history of the June 2001 horse accident resulting in a fractured pelvis, specifically noted as involving the superior pubic rami bilaterally and the right inferior pubic ramus. An October 2004 service treatment record reflects the Veteran reported that she was speed walking and felt pain in the front of her right hip using a heel lift, findings of pain with right hip flexion were noted, and a diagnosis of a hipflexor strain was recorded. No complaints are shown, however, regarding her left hip. Post-service, a July 2009 VA treatment record reflects that the Veteran complained of right hip pain. A May 2009 VA examination report reflects the examiner acknowledged the Veteran's pre-service history of a right superior and inferior pubic rami fracture, and a left superior pubic ramus fracture, which required hospitalization at the time, but did not require surgery. Further, the discharge note reflected that she was doing well at the time of discharge. The examiner noted that the Veteran currently reported pain deep in her pelvis, that her hips pop often, and that she notices a clicking sensation, albeit the Veteran reported that the pain improved significantly since service. Physical examination revealed no leg length discrepancy, and no tenderness to palpation. Active range of motion testing (post-exercise) of the left hip revealed flexion to 120 degrees, extension to zero degrees, abduction to 55 degrees, adduction to 55 degrees, internal rotation to 46 degrees, and external rotation to 42 degrees. After ten repetitions, there was evidence of mild pain with grimacing. Also, with exercise of the left hip, there was a loud, audible popping sound that seemed to be coming from the pelvic/groin region. Post-repetition active range of motion testing revealed flexion to 90 degrees, extension to zero degrees, abduction to 54 degrees, adduction to 54 degrees, internal rotation to 62 degrees, and external rotation to 35 degrees. Active range of motion testing (pre-exercise) of the right hip revealed flexion to 110 degrees, extension to zero degrees, abduction to 45 degrees, adduction to 70 degrees, internal rotation to 62 degrees, and external rotation to 35 degrees. After ten repetitions, there was no evidence of pain, weakness, incoordination, fatigability, lack of endurance, or flare-ups. Post-exercise active range of motion testing of the right hip revealed flexion to 95 degrees, extension to zero degrees, abduction to 40 degrees, adduction to 62 degrees, internal rotation to 64 degrees, and external rotation to 45 degrees. X-rays revealed that the bilateral hip joint spaces appeared approximately preserved and symmetric. A diagnosis of left hip Coxa Saltans was recorded, and the examiner recorded an impression of no right hip condition found on examination. The examiner did not, however, provide any etiological opinion. A January 2013 VA examination report reflects that the VA examiner noted the Veteran's pre-service history of the fracture injury. The Veteran reported that her condition was aggravated in service mostly due to running three miles a day on a regular basis. She reported noticing a clicking sensation, mostly on the right, as well as pain in her hips with running (but that she no longer runs), and that she has an occasional popping sensation in her hips with climbing stairs or taking long strides. The examiner noted that the Veteran's service treatment records showed only one complaint in 2004 for a diagnosed right hip flexor strain, and that her separation physical showed she did not have any problems with any of her joints, and there was no mention of any continuous symptoms involving her hips. The examiner noted that range of motion was normal bilaterally, and that there was no objective evidence of painful motion. No functional loss or functional impairment of either hip was found. Hip strength was noted as 5/5 bilaterally. No malunion or nonunion of the femur or flail hip joint was found. Diagnostic testing revealed no degenerative or traumatic arthritis. The examiner noted there was no diagnosis for the right hip, and noted left hip Coxa Saltans diagnosed in 2009. Based on the review of the file, and examination of the Veteran, the examiner opined that it was less likely than not that the Veteran's left hip Coxa Saltans was related to her pre-service fracture injury, or that the pre-service injury increased in severity during service. The examiner reasoned that there was no evidence in her service treatment records of any pain in her pelvic area or recurrent hip problems, x-rays did not indicate any degeneration or abnormalities, and she did not have any current symptoms except for popping in her left hip with certain range of motion, and she had not sought any treatment since her discharge from service. A May 2013 VA medical opinion was obtained from the same VA examiner. With regard to the Veteran's left hip, the examiner clarified that the diagnosis was left hip Coxa Saltans based on her reports of clicking and popping in her left hip. The examiner also clarified that the Veteran's left hip Coxa Saltans is less likely than not a residual of her pre-service pelvic fracture injury. The examiner explained that the Veteran indicated that her symptoms resolved, mostly because she does not perform running anymore. She further noted that there were no significant residuals on her most recent January 2013 examination, that there was no evidence of nonhealing or a nondisplaced fracture in the 2001 records, and that both hips were considered stable and nondisplaced. She further noted the Veteran's statement that she had no symptoms from her pelvic fracture when she enlisted in 2002. The examiner found it important that there is no indication in the medical literature to suggest that Coxa Saltans is a natural progression in an individual with a previous, stable, nondisplaced pelvic fracture. Rather, the examiner explained that Coxa Saltans is typically related to the mechanics of the hip joint and is commonly seen with activities like running and dancing or overtraining. The examiner also cited to and quoted text from a January 2004 article from The Physician and Sports Medicine Journal, Vol. 32, No. 1. in support of her conclusion. Again, with regard to the Veteran's right hip, no diagnosis was noted. With regard to the Veteran's right hip, as shown above, the May 2009 and January 2013 VA examination reports, and the May 2013 VA medical opinion, all reflect that no current right hip disability was found. The Board notes that the threshold requirement for service connection to be granted is competent medical evidence of the current existence of the claimed disorder. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Without a current diagnosis of a right hip disability during the period on appeal, there may be no service connection for the claimed disability. While the Board recognizes the Veteran's reported symptomatology, including right hip pain, and that the record indicates that she is a nurse, the Board finds the opinion of the January 2013 and May 2013 VA examiner to be by far more probative based on the examiner's medical education, training, and experience, and because the examiner's rationale is more thorough. See 38 C.F.R. § 3.159(a). Also, while the Board acknowledges that the examiner noted in her May 2013 opinion, in response to the Board having pointed out that a July 2009 VA treatment record reflected a complaint of right hip pain, that she was unable to locate that record. Nevertheless, the Board notes that the May 2013 VA examiner's opinion reflects that the examiner had taken into account the Veteran's entire history, including her complaints of pain, in rendering her opinion, such that the fact that the examiner was unable to locate that particular record showing a brief notation of right hip pain (with no further discussion) is harmless. The Board adds that pain itself, without a diagnosed condition, does not constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). In short, without a diagnosed right hip disability, service connection cannot be established. With regard to the Veteran's left hip, as shown above, the Veteran's pre-service June 2001 injury involving a fractured pelvis was clearly noted on entry; therefore, the Board finds that the presumption of soundness does not apply. See 38 U.S.C.A. § 1111 (West 2002). The Board notes that the presumption of aggravation applies only when a pre-service disability increases in severity during service. Beverly v. Brown, 9 Vet. App. 402, 405 (1996). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153 ; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet. App. 398, 402 (1995); see also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (holding that evidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat Veteran to establish an increase in disability). If an increase is shown, the presumption of aggravation may be rebutted only by clear and unmistakable evidence that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a), (b). As shown above, the Veteran's service treatment records are silent as to any complaints regarding her left hip. Likewise, as noted above, the May 2013 VA examiner opined that the Veteran's pre-service pelvic fracture did not increase in severity during service. Therefore, with regard to the Veteran's left hip, the Board finds that there was no increase in severity during the Veteran's service, and the presumption of aggravation does not apply. The Board finds the opinions of the January and May 2013 VA examiner to be the most probative evidence of record with regard to whether the Veteran's current left hip disability, Coxa Saltans, is a residual of her pre-service pelvic fracture injury, or whether her pre-service injury was otherwise aggravated by service. The VA examiner examined the Veteran, elicited a history from her, and provided a detailed, thorough rationale for her conclusions. A shown above, the VA examiner opined that the Veteran has no current residuals of her pre-service pelvic fracture injury, including no hip disability as a residual. The Board acknowledges that the Veteran may be sincere in her belief that her current left hip Coxa Saltans constitutes a residual of her pre-service pelvic fracture, and again, the Board acknowledges she is a nurse. The Board finds, however, that the opinion of the January 2013 and May 2013 VA examiner is far more probative, because the examiner's rationale is more detailed and thorough, and based on her medical education, experience, and training, as the etiology of Coxa Saltans is a complex medical question not capable of lay observation. See 38 C.F.R. § 3.159(a); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board adds that the Veteran has not asserted any other theory of entitlement with regard to her claim for service connection for a hip disability, such as direct service connection, no other theory of entitlement has been raised by the record, and the Board is not obligated to investigate all possible theories of entitlement. See Robinson v. Mansfield, 21 Vet. App. 545 (2008). Therefore, in light of the above, the Board finds that a preponderance of the evidence is against granting service connection for a left or right hip disability, to include as residuals of a pelvic fracture; the benefit of the doubt rule is not for application, as there is not an approximate balance of evidence. See 38 U.S.C.A. § 5107(b). B. Internal TMJ Derangement The Veteran also claims that she has internal TMJ derangement that is related to her active service. Specifically, she asserts that it had its onset in service when her jaw "locked up." With regard to the Veteran's service treatment records, an October 2006 service treatment record reflects that she reported that she had experienced jaw pain and stiffness the day before that had since resolved after seeing a private chiropractor. A diagnosis of jaw pain, resolved, was recorded. Post-service, a December 2007 private chiropractic record reflects that the Veteran reported that she had in the past and presently experienced symptoms of jaw pain and that it "pops in and out, jaw locked up and couldn't move it." A diagnosis of left and right TMJ crepitus with abnormal motion upon opening was recorded. A May 2009 VA examination report reflects that she reported a history of her jaw locking in service and that during the occurrence she had difficulty opening her mouth, but that it has not recurred since. She also reported experiencing jaw popping, sometimes accompanied by pain. Examination revealed noticeable joint crepitus/popping bilaterally. The examiner noted that he joints could be heard popping across the room, but at the time of the examination she did not experience pain. A diagnosis of internal derangement of TMJs bilaterally, without loss of function was recorded. The examiner did not, however, provide an etiological opinion. A January 2013 VA examination report reflects that the Veteran reported one episode of locked jaw (in service), without recurrence. She reported that the onset of the clicking of her jaw was prior to service, at 13 years of age with an orthodontic bite plate. Presently, she reported experiencing intermittent pain and discomfort with some twinges when she opens and closes, and that she has clicking and popping that others can hear. Examination revealed, among other things, class I molar occlusion, left and right, tenderness on palpation of the lateral pterygoid muscles, as well as clocking and popping noted, with reduction, of the left and right joint. A panoramic radiograph revealed that the condylar heads, disc spaces, and articular eminences appeared intact and normal. A diagnosis of intermittent anterior displacement of the articular disc with reduction was recorded. It was further noted that the Veteran reported experiencing bruxism (teeth grinding), which the examiner opined was secondary to her pain complaints. Based on a review of the file, and examination of the Veteran, the examiner opined that the Veteran's TMJ issues were not caused by or related to service. The examiner reasoned that the Veteran's clicking and popping sounds were not the source of any discomfort reported by her, and that her soft tissue tenderness issues appeared to be muscle and habit related. The examiner further explained, citing a dental journal article, that 33 percent of asymptomatic children and young adults examined had disc displacement, such that not everybody having disc displacements suffers from it, and not every disc displaced is the source of the patient's symptoms. A May 2013 VA medical opinion from the same examiner that provided the January 2013 VA examination reflects that the examiner explained that the Veteran's jaw issues are due to congenital normal anatomic formation of the TMJ, as the left mandibular condyle appears to be enlarged on the panoramic radiograph, and the articular eminence appears short and shallow, enabling the condylar disc to readily experience anterior derangement and corresponding reduction. The examiner explained that this would explain her one-time occurrence of lock jaw reported by her in service (as the examiner noted that the October 2006 dental note showed that she reported having trouble opening her jaw two days prior, and that the only findings at that time were of left jaw tenderness). The examiner further opined that the Veteran's congenital TMJ condition was not aggravated by service, as confirmed by multiple annual dental examinations in her service medical records. The Board notes that a congenital or developmental defect is not considered a disease or injury for VA purposes. See 38 C.F.R. §§ 3.303(c), 4.9 (2012). Therefore, a congenital defect, as distinguished from a disease, generally may not be service-connected as a matter of law. Further, the general presumption of soundness upon entry into service, as set forth in 38 C.F.R. § 3.304(b) (2012), does not apply to congenital defects. However, service connection may be granted if a congenital defect is subject to, or aggravated by, a superimposed disease or injury during service which results in additional disability. 38 U.S.C.A. §§ 1110, 1111 (West 2002); VAOPGCPREC 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990); see also Quirin v. Shinseki, 22 Vet. App. 390 (2009); Winn v. Brown, 8 Vet. App. 510, 516 (1996). Service connection may be granted for diseases (but not defects) of congenital, developmental, or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. VAOPGCPREC 82-90 (July 18, 1990). The Board finds the opinions of the January 2013 and May 2013 VA examiner to be the most probative evidence of record with regard to whether the Veteran's TMJ derangement was caused or aggravated by service. As shown above, the examiner opined in May 2013 that the Veteran's jaw issues are due to the congenital anatomic formation of her TMJ, and were not caused or aggravated by service. In this regard, the Board acknowledges that the VA examiner did not refer to the Veteran's condition as a congenital or developmental "defect." The Board nevertheless finds, however, that taken as a whole, the VA examiner clearly intended that the Veteran's condition was congenital defect, particularly as it was noted as involving the anatomical location of the left mandibular condyle and the articular eminence. The Board adds that a disease generally refers to a condition that is considered capable of improving or deteriorating, while a defect is generally not considered capable of improving or deteriorating. VAOPGCPREC 82-90 (1990) (citing Durham v. United States, 214 F.2d 862, 875 (D.C. Circuit 1954). Therefore, the Board finds that the presumption of soundness does not apply. See Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009) (citing Terry v. Principi, 340 F.3d 1378, 1385-1386 (Fed. Cir. 2003)). Furthermore, the Board finds that no superimposed injury in service is shown, as the VA examiner explained that the Veteran only complained of a locked jaw one time in service, and all of her dental examinations from 2003 to 2011 were normal. The Board again acknowledges that evidence indicates that the Veteran is a nurse. She is not shown, however, to have any education, experience, or training in any matters involving the jaw or teeth (such as in dentistry or oral/maxillofacial surgery), whereas the January 2013 and May 2013 VA examiner is a doctor of dental surgery (D.D.S.). Therefore, the Board ultimately finds the VA examiner's opinion to be by far more probative. Therefore, in light of the above, the Board finds that a preponderance of the evidence is against granting service connection for internal TMJ derangement; the benefit of the doubt rule is not for application, as there is not an approximate balance of evidence. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a bilateral hip disability, to include as residuals of a pelvic fracture, is denied. Entitlement to service connection for bilateral TMJ derangement is denied. ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs