Citation Nr: 1334306 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 12-14 884 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a jaw condition. 2. Entitlement to service connection for a scar, status post sutures of the jaw, as secondary to non-service connected jaw condition. ATTORNEY FOR THE BOARD Eli White, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1960 to June 1962. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. FINDINGS OF FACT 1. The Veteran does not have a current jaw condition that is related to an injury or disease in service. 2. The Veteran's scar is not related to an injury or disease in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a jaw condition have not been met. 38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). 2. The criteria for entitlement to service connection for a scar, status post sutures of jaw, have not been met. 38 U.S.C.A. §§ 1101, 1131, 5103, 5103A; 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty 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 2010. The letter informed the Veteran of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. The letter 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 or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. 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 and relevant VA treatment records and associated them with his claims file. In addition, the Board concludes an examination is not needed in the present case. In disability compensation claims, VA must provide a VA medical examination 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. Id.; 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the third factor above, the United States Court of Appeals for Veterans Claims (Court) 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. As discussed in more detail below, the Board believes that there is no credible evidence suggesting an association between any alleged current disability and any event, injury or disease in service. Specifically, there is no evidence of a competently diagnosed jaw condition, credible evidence of an in-service jaw injury or sutures, or competent and credible evidence of a link between the Veteran's scar and current jaw condition and his military service. Thus, VA is not required to provide the Veteran with a VA examination in conjunction with this claim. 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 current disabilities of a jaw condition and a residual scar from sutures to his jaw after suffering a jaw injury as a result of a fall during active service. Specifically, he asserts that in 1960, he fell and hit a booby-trap simulator while participating in a field exercise and was subsequently treated on scene by medics who sutured his jaw. He contends that since that time he has had limitation of mastication and pain in his jaw and that he additionally has a residual scar from the sutures. For this reason, he asserts that he is entitled to service connection for a jaw condition and for a scar post sutures of his jaw. 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. § 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). II.A. Jaw condition 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 a jaw condition contemporaneous to or during the filing 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 are absent of any diagnosis or treatment of a jaw condition. Though the claims file additionally contains VA treatment records from the San Juan, Puerto Rico VA Medical Center (VAMC) dating from July 2010 to October 2010, the records show the Veteran has received limited treatment for his ears, and are similarly absent of any diagnosis or treatment for a jaw, face, or mouth condition. In February 2011, the Veteran stated that he continues to receive medical treatment from the San Juan VAMC; however, he has made no assertion that he currently or has ever received medical treatment for any symptoms associated with his jaw. The Board recognizes that the Veteran complains of pain, and indeed, wishes to make clear that it has no reason to doubt that he experiences such 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 pain to a chronic jaw disability. 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 lay statements regarding his symptoms 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. In the absence of evidence indicating that the Veteran has the medical training to render medical opinions, the Board must find that his contention with regard to a diagnosis of a jaw condition 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 a current jaw disability. As the evidence of record lacks any competent evidence that the Veteran has a jaw condition, the preponderance of medical and lay evidence of record is against the Veteran's claim for service connection for a jaw condition. II.B. Scar With respect to the claim of entitlement to service connection for a scar, status post sutures of jaw, the Board finds that the Veteran is competent to establish that he has a scar. See Jandreau, supra (lay person is competent to identify the condition where it is simple, such as a broken leg). The crucial inquiry, therefore, is whether that scar is related to any incident of service. For the reasons and bases set forth below, the Board concludes it is not. The Board finds that there is no credible evidence of record demonstrating the incurrence of an in-service jaw injury requiring sutures. In reaching this decision, the Board has considered the Veteran's service treatment records, post-service medical records included in the claims file, and his lay statements and descriptions of the in-service injury. The Board has "the authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In this case, the "inherent characteristics" of the Veteran's current statements as to the circumstances of his in-service injury are inconsistent with the objective medical record and the Veteran's own contemporaneous statements. Though the Veteran's service treatment records include detailed reports documenting his diagnosis and extensive treatment for gynecomastia of his right breast, they are absent of any report of injury to his face and jaw. His in-service records similarly fail to document that he received any sutures as a result of an injury. Further, the Veteran's service treatment records additionally include dental records dating for the entirety of his active service which also make no mention of any injury to his face, mouth, or jaw, or any reports of pain or limitation of chewing. The Veteran completed a Report of Medical History in conjunction with is separation examination in April 1962. Significantly, in response to a question asking whether he had been treated by clinics, physicians, healers, or other practitioners within the last five years, the Veteran identified receiving treatment at "M.A.H." The document shows that the examining physician solicited additional details regarding the reported treatment, and noted that it pertained to an eight day hospital stay at Fort Benning for gynecomastia of the right breast. The Report of Medical History further shows that the Veteran checked that he had previously had diptheria, and additionally responded "no" to the question of whether he had ever had any illness or injury other than those already noted. Notably, the report is absent of any statement reporting he received treatment from medics during a field exercise. That the Veteran identified his in-service treatment at a base hospital and additionally reported a previously suffered illness tends to show that he was aware of his medical history at the time of separation. Thus, it follows that if the Veteran did have a jaw injury and received sutures in service, he likely would have reported it on the April 1962 Report of Medical History. The evidence of record also includes the Veteran's report of the injury and sutures to his jaw, first made in his June 2010 claim, and his January 2011 Notice of Disagreement which includes lay statements describing his fall during a field exercise and subsequently receiving sutures to his jaw. While the Board acknowledges the Veteran is competent to provide evidence of his own experiences, to include the report of an injury during service, the facts that the Veteran's mouth, jaw, and face were noted as normal at separation, that the Veteran did not report any jaw injury on his Report of Medical History upon separation, and that over forty-five (45) years passed after separation before complaining of a jaw injury and resulting scar weigh heavily against finding his current assertions of an in-service injury to be credible. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that the Veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a prolonged period without medical complaint can be considered, along with other factors concerning a veteran's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service that resulted in any chronic or persistent disability). For these reasons, the Board gives greater credence and weight to the contemporaneous service treatment records filed in this matter. For the reasons described above, the ultimate conclusion is that his statements regarding the in-service injury are simply not credible evidence. There are objective documents from active service and the Veteran's own contemporaneous statements that refute his claim of suffering an in-service jaw injury requiring sutures. Because of the inconsistency, and the lack of corroborating objective evidence, the Board finds that the Veteran's current statements have no probative value. As there is no medical or other credible evidence linking any current scar to any incident of military service, the Board concludes that the preponderance of the evidence is against granting 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 a scar status post sutures of jaw, as secondary to a non-service connected jaw condition 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 a jaw condition is denied. Entitlement to service connection for scar status post sutures of jaw as secondary to non service connected jaw is denied. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs