Citation Nr: 1334035 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 13-03 511 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for residuals of fractured mandible. 2. Entitlement to service connection for seizures. REPRESENTATION Appellant represented by: Carol Avard, Attorney ATTORNEY FOR THE BOARD Eli White, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1979 to January 1982. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The issue of entitlement to service connection for seizures is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDING OF FACT The Veteran does not have current residuals of fractured mandible that are related to an injury or disease in service. CONCLUSION OF LAW The criteria for entitlement to service connection for residuals of fractured mandible have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary, or would be of assistance, in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is warranted. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). The VCAA applies to the instant claim. The notice required by the VCAA can be divided into three elements. Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In the instant case, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in June 2009. The letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The letters also informed the Veteran of how ratings and effective dates are assigned. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of service and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service records and associated them with his claims file. The Veteran's VA treatment records have also been associated with the claims file as enclosed in his Social Security Administration (SSA) records located in the file. In addition, VA afforded the Veteran an adequate examination and obtained an adequate expert opinion in November 2009. The examiner considered the relevant history of the Veteran's fractured mandible, provided a detailed description of that condition, and provided an extensive analysis to support the conclusions reached. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure the examination is adequate). As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A, or 38 C.F.R. §3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. II. Merits of the Claim The Veteran contends that he has a current disability of residuals of fractured mandible as a result of a fall sustained during active service. Specifically, he asserts that in March 1980, while working on top of a ship deck during active service, he fell and fractured his lower jaw. For this reason, he asserts that he is entitled to service connection for residuals of fractured mandible. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2013). Generally, to establish entitlement to service-connected compensation benefits, 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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). To make this determination, the Board must consider all the evidence of record and make appropriate determinations of competency, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board recognizes that lay evidence concerning onset and history of symptoms during or after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). As an initial matter, service connection presupposes a diagnosis of a current disability. See Rabideau v. Derwinski, 2 Vet. App. 141 (1992). A "current disability" means a disability shown by competent medical evidence to exist. See Chelte v. Brown, 10 Vet. App. 268 (1997). With respect to the first element required for service connection, the existence of a present disability, the competent and probative evidence of record shows that the Veteran has not been diagnosed with any residuals of a fractured mandible contemporaneous to or during the pendency of his claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The Veteran's service treatment records show that he was seen at the Oral Surgery Naval Medical Center in Newport, Rhode Island, in October 1981to have his arch bars removed that were stabilizing his left subcondylar mandible fracture. A notation in his records additionally states that after this procedure, he was found "fit for duty" and able "[t]o return to full duty status." On his January 1982 Report of Medical History, completed in conjunction with his separation examination, the Veteran wrote that he had been hospitalized and underwent an operation on his jaw when it was fractured. The examiner wrote that the Veteran stated he fractured his jaw in 1980. The Veteran's service treatment records are absent of any additional treatment for his jaw. Though the claims file additionally contains VA treatment records from the Miami VA, Bay Pines VA, Fort Myers VA Medical Center (VAMC), and Port Charlotte Community-Based Outpatient Clinic, dating from June 2009 to September 2010, the records are absent of any post-service diagnosis or treatment for a jaw, face, or mouth condition. The Board recognizes that a June 2009 VA treatment record notes that the Veteran has jaw and face pain. However, pain alone, without a diagnosed or identifiable underlying malady or condition, does not constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). While the Veteran is entirely competent to report that he experiences pain, he is not competent to associate his jaw and face pain to a disability of residuals of a fractured mandible. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has provided guidance for determining what kind of lay evidence is competent evidence, stating as follows: "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition, (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Though the Board finds that the Veteran's June 2009 report of symptoms of jaw and face pain are credible, a determination of whether his symptoms are manifestations of an identifiable underlying malady or condition is one for a medical professional, as such opinion requires specific medical training and is beyond the competency of the Veteran or any other lay person. Indeed, though the Veteran reported his pain to a medical professional, he was not diagnosed at that time with any underlying jaw condition. In the absence of evidence indicating that the Veteran has the medical training to render medical opinions, the Board must find that his report of pain to his jaw and face, with regard to a diagnosis residuals of fractured mandible, is of no probative value. See 38 C.F.R. § 3.159(a)(1) (2013) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Accordingly, the statements offered by the Veteran in support of his own claim are not competent evidence of current residuals of fractured mandible. In November 2009, the Veteran was provided with a VA examination for his claim of entitlement to service connection for residuals of a fractured mandible. The examiner reviewed the claims file and interviewed the Veteran. The examiner noted that the Veteran had suffered a left subcondylar fracture of the mandible during service, but upon examination stated that "[n]o residuals from fractured mandible at this time could be found." Specifically, the examiner found that the Veteran had no swelling, pain, drainage, neoplasm, trauma to the teeth, difficulty chewing, difficulty opening his mouth, or difficulty talking. In addition, the examiner noted there was no loss of bone, malunion, or nonunion of the mandible, no loss of bone, malunion, or nonunion of the maxilla, no loss of bone of the hard palate, and no evidence of osteoradionecrosis or osteomyelitis. Finally, the examiner specifically documented that the "Veteran states he is not having any problems with his jaw but when he has s[ei]zures he br[eak]s his teeth." In his November 2010 Notice of Disagreement (NOD), the Veteran asserts that he is entitled to service connection because he sustained an injury to his jaw and received treatment for it in service, yet also acknowledges that "[m]edical examination shows that his jaw injury is well healed and that he has no residual disabilities as a result." The claims file is additionally absent of any additional lay or medical evidence suggesting that the Veteran has suffered any residuals of a fractured mandible as a result of his in-service fall. Though the Veteran has submitted private treatment records in connection with his claims currently on appeal, the records are absent of any diagnosis or treatment of a mandible, face, or mouth condition, and he has made no assertion that he currently or has ever received medical treatment for any symptoms associated with residuals of a fractured mandible. As the evidence of record lacks any competent evidence that the Veteran has residuals of a fractured mandible, and indeed, contains competent evidence that he lacks any disability with respect to his mandible, mouth, or face, the preponderance of medical and lay evidence of record is against the Veteran's claim for service connection. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for residuals of fractured mandible must be denied. See 38 U.S.C.A. § 5107(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for residuals of fractured mandible is denied. REMAND The Veteran contends he is entitled to service connection for seizures. He asserts that he suffered a concussion and lost consciousness when he suffered a fall in service, and that he has had a delayed onset of seizures as a result of the head trauma sustained in the fall. In addition, the Veteran states that his seizures have caused him to lose consciousness, sustain falls, and experience amnesia, rendering him unable to operate a motor vehicle or obtain employment. Further evidentiary development is necessary before appellate review may proceed. The Veteran's service treatment records document that he underwent oral surgery in October 1981 as a result of a fractured mandible incurred during a fall in service. The Veteran asserts that during this fall, he also lost consciousness and sustained a concussion, which he believes has caused his current seizure disability. On his January 1982 Report of Medical History, completed upon separation from active service, the Veteran noted that he was hospitalized at "Portsmith, N[ew] H[ampshire] Air Force Base" for a broken jaw. In addition, the November 2009 VA examination report contains a notation that the Veteran was hospitalized at Pease Air Force Base Hospital in September 1981 in connection with his left subcondylar fracture of the mandible. The claims file is absent of any in-patient treatment in connection with the Veteran's in-service fall and fractured mandible. As the Veteran has asserted he also sustained a concussion during the course of this fall, which he contends has caused his current seizure disability, remand is necessary to obtain these in-patient records. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(2). Remand is additionally necessary in order to provide the Veteran with a VA medical examination to determine the nature and etiology of his seizures. VA has a duty to assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. A VA examination is necessary prior to final adjudication of a claim when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifested during an applicable presumption period for which the veteran qualifies, (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence of record for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the third factor above, the Court of Appeals for Veterans' Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. McLendon, 20 Vet. App. at 83. In the present case, the Veteran has not been afforded a VA examination addressing his current service connection claim for seizures. As an initial matter, the current medical evidence of record shows the Veteran was diagnosed with recurrent complex partial seizures with secondary generalization, seizure disorder, and uncontrolled epilepsy contemporaneous to and during the pendency of this claim. The evidence of record also indicates that the Veteran suffered a fall in service which may have resulted in a concussion and loss of consciousness. This evidence is sufficient to satisfy the second factor for determining whether a medical examination is necessary. In addition, the Veteran's representative submitted medical literature addressing the development of epilepsy in persons who have suffered a severe head injury. This evidence, taken together with the Veteran's seizure disability and fall in service, indicates that the Veteran's seizures may be associated with service. Thus, the evidence meets the low threshold for the third factor set forth in McLendon, 20 Vet. App. at 83. Lastly, the only medical nexus opinion associated with the claims file consists of that of a private doctor who stated that he does not know whether it is as likely as not that the Veteran's seizures are a result of head trauma suffered in service. As such a finding was made without the benefit of reviewing the Veteran's in-patient medical records related to the in-service injury, the Board finds that there is insufficient competent medical evidence to decide the issue of entitlement to service connection for seizures. Accordingly, a remand is necessary to provide the Veteran with an examination to obtain the necessary medical opinion. The Veteran has additionally identified several private providers from which he has received treatment for his seizures. Though the Board recognizes that the RO previously provided the Veteran with VA Form 21-4142, Authorization and Consent to Release Information to the VA for his signature and return to the RO so that they could attempt to obtain any relevant private treatment records, and that many private treatment records have been associated with the file through the SSA records received via compact disc, the Board finds that due to the need to remand for additional development of the claim, the Veteran should be provided with another opportunity to provide or otherwise assist the VA in obtaining additional outstanding private treatment records. Accordingly, the case is REMANDED for the following action: 1. Submit an appropriate request to the National Personnel Records Center (NPRC) for any in-patient treatment records for the Veteran from the Pease Air Force Base Hospital, located in Portsmouth, New Hampshire, from March 1980 to October 1981. Associate any responsive records with the Veteran's claims file. If such records are not available, written certification of such is required, and the Veteran must be notified. 2. Obtain and associate with the claims file any outstanding VA treatment records, to specifically include from September 2010 to the present, with particular attention to records from the Miami VA, Bay Pines VAMC, Fort Myers VAMC, and Port Charlotte Community-Based Outpatient Clinic. Any attempts to obtain these records and responses received thereafter should be associated with the claims file. 3. The AMC should additionally contact the Veteran and request that he provide a completed release form (VA Form 21-4142) authorizing VA to request copies of any treatment records from any private medical providers who have treated him for seizures or epilepsy. After the Veteran has signed the appropriate releases, those records not already associated with the claims file should be obtained and associated therewith. All attempts to procure any outstanding treatment records should be documented in the claims file. If the AMC cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file and the Veteran and his representative should be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 4. After completing the above development, schedule the Veteran for an examination by a physician skilled in the diagnosis and treatment of seizure and epilepsy disorders to determine the nature and etiology of his seizure and epilepsy disorder. The claims file, including a copy of this Remand, must be provided to the examiner for review in conjunction with the examination, and the examiner should be directed to elicit a complete history from the Veteran, the details of which should be included in the examination report. While review of the entire file is required, attention is invited to the following particular records: (a) The Veteran's service treatment records, including any in-patient treatment records obtained from Pease Air Force Base regarding injuries sustained from an in service fall; (b) VA treatment records and private treatment records detailing treatment for seizures and epilepsy, from the following medical providers, located on the Social Security Administration compact disc: (i) Miami VA, Fort Meyer VAOC, and Port Charlotte Community-Based Outpatient Clinic, June 2009 to October 2010; (ii) Gulf Coast Medical Center, March 2008 (iii) Southwest Florida Regional Medical Center, March 2008 to June 2008; (iv) Lee Memorial Health System, March 2009 (v) Fawcett Memorial Hospital, July 2008 to September 2008, May 2011 and November 2011 (vi) Neurology, P.A., August 2008 through September 2010; and (vi) Peace River Regional Medical Center, April 2009. (c) The April 2009 private medical treatment records from Dr. E., in which the Veteran reports he suffered a broken mandible and concussion as a result of his in-service fall, that he first experienced a seizure in 2008, and that he believes the in-service fall caused his current seizure disorder; (c) The medical articles submitted by the Veteran's representative in support of his claim, discussing the onset of seizures and/or epilepsy in persons who have suffered a head injury; and (d) The February 2013 Seizure Disorders (Epilepsy) Disability Benefits Questionnaire completed by private medical provider Dr. C, and accompanying private medical treatment records from January and February 2013. The examiner must provide a medical opinion as to whether it is at least as likely as not (a 50 percent or greater possibility) that the Veteran's seizure disability had onset during or was caused by his active service, to include as a result of his in-service fall. The examiner should additionally review and discuss the medical articles submitted by the Veteran's representative, regarding the relationship of head trauma and the onset of epilepsy. The examiner should provide a complete rationale for any and all conclusions reached. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 5. After completing the above action, determine whether there exists any basis for additional evidentiary development and readjudicate the Veteran's claim of service connection for seizures. If the benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto. The record should then be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs