Citation Nr: 1334601	
Decision Date: 10/30/13    Archive Date: 11/06/13

DOCKET NO.  12-31 580	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUE

Entitlement to service connection for residuals of an injury to the jaw.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

Appellant and his spouse


ATTORNEY FOR THE BOARD

Scott Shoreman, Counsel


INTRODUCTION

The Veteran had active service from November 1949 to July 1952 and from August 1954 to July 1956.

This matter comes before the Board of Veterans' Appeals (Board) from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.

The Veteran and his spouse testified before the undersigned Veterans Law Judge at a videoconference hearing in September 2013.  A transcript is of record.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  In April 2003 the RO denied service connection for a broken right jaw and dental injury due to a gunshot wound.

2.  Morning reports associated with the file in February 2010 indicate that the Veteran was stationed in Wurzburg, Germany and was granted 10 days of leave in 1951.

3.  Residuals of a jaw injury were incurred in service.


CONCLUSIONS OF LAW

Residuals of an injury to the jaw were incurred in service.  38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision, the Board grants service connection for residuals of an injury to the jaw.  As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary.

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  

Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.  38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and recurrence of his current 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).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. 

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See id. at 303-04.  

The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  

Pursuant to 38 U.S.C.A. § 7105(c), a final decision by the RO may not thereafter be reopened and allowed.  The exception to this rule is found at 38 U.S.C.A. § 5108, which provides that "[i]f new and material evidence is presented or secured with respect to a claim, which has been disallowed, the [VA] shall reopen the claim and review the former disposition of the claim."  Therefore, once an RO decision becomes final under section 7105(c), absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA.  38 U.S.C.A. §§ 5108, 7105(c) (West 2002); Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). 

However, pursuant to 38 C.F.R. § 3.156(c), if at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the prior denial.  The Board denied the Veteran's initial service connection claim for a broken right jaw and dental injury due to a gunshot wound in April 2003.  Since relevant morning reports mentioning the Veteran have been received since the April 2003 rating decision, the claim for service connection is being considered on the merits.

The service treatment records show that in April 1950 the Veteran was missing two on the lower jaw.  January 1952 and March 1956 treatment records show that the Veteran was missing all of the teeth of the upper jaw and five to six teeth of the upper jaw.  A December 1951 morning report from Wurzburg, Germany shows that the Veteran was granted 10 days of leave.  It also lists the Veteran's service number, and the last four digits match the four digits that are imprinted on the dental appliance pictured in a photograph he submitted.

The Veteran wrote in an August 2009 statement to a member of Congress that in November 1950 he was on guard duty.  During the changing of the guard a gun fired, wounding him in the right jaw.  His right jaw was wired shut for approximately 20 days.  In February 2010 the Veteran submitted a photograph of the dental appliance he received to compensate for the loss of his lower right jaw bone as the result of a shrapnel wound.  He further wrote that the morning reports document the convalescence leave he was granted as a result of his injury.  

A private dentist wrote in July 2010 that the Veteran is not able to wear traditional dentures because the loss of bone and muscular function was too great.

The Veteran testified at the September 2013 hearing that he has a TMJ disease.  He felt that the TMJ disease was a direct result of injury from military service that occurred when a gun fired during a changing of the guard.  The Veteran further testified that he was treated at the 10th Army Field Hospital in Wurzburg, Germany.  His jaw was wired shut for about three weeks.  The Veteran had no injury to his jaw before or after service, including in his work as a pipefitter.  He has continued to have dental problems since service.  He attempted to obtain treatment records from soon after service but they were no longer available.  The Veteran's spouse testified that she knew him prior to military service and that she observed him in the years after discharge having to be careful with what he ate due to a jaw injury.   

Resolving all doubt in the Veteran's favor, the Board finds that the Veteran is entitled to service connection for residuals of a jaw injury.  The Veteran is competent to state that his jaw was injured during service, and the Board finds his statements and testimony credible.  The Veteran's spouse's testimony regarding the Veteran losing teeth during service is also competent and credible.  See Layno, supra.  The STRs show that all of the Veteran's upper teeth were removed during his service, and the morning reports show that the Veteran was stationed where he stated that the injury occurred during the same time period.  In light of the competent and credible account of the in-service jaw injury, the credible history of residuals from such injury since service, and the letter from the private dentist showing a current loss of bone and muscular function and inability to wear traditional dentures, the Board finds that service connection for residuals of a jaw injury is warranted because there is a current disability that had its onset in service.  


ORDER

Service connection for residuals of a jaw injury is granted.




____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs