Citation Nr: 1336074 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 11-19 126 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for left face nerve damage with chipped jaw bone due to extracted wisdom teeth (hereinafter nerve damage to the left face). ATTORNEY FOR THE BOARD Journet Shaw, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1983 to September 1987. The matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's appeal. A review of the virtual file did not reveal any additional evidence. FINDING OF FACT The Veteran does not have a current disability of nerve damage to the left face due to his extracted wisdom teeth. CONCLUSION OF LAW The criteria for service connection for nerve damage to the left face have not been met. 38 U.S.C.A §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection is awarded. In this appeal, a December 2009 pre-rating letter provided notice to the Veteran as to what information and evidence was needed to substantiate a claim for service connection, what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The letter also provided general information pertaining to VA's assignment of disability ratings and effective dates in accordance with Dingess/Hartman. Id. The Board concludes that VA's duty to assist has been satisfied. The claims file contains the Veteran's service treatment records, private treatment records, as well as a September 2010 VA examination report. Additionally, the claims file contains the Veteran's statements in support of his claim. The Veteran has not referenced any outstanding, available records that he wanted VA to obtain or that he felt were relevant to the claim that have not already been obtained and associated with the record. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Unless the Veteran challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate and need not affirmatively establish the adequacy of the examination report or the competence of the examiner. Sickels v. Shinseki, 643 F.3d 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged). But even when this is challenged, the Board may assume the competency of any VA medical examiner as long as, under 38 C.F.R. § 3.159(a)(1), the examiner is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Cox v. Nicholson, 20 Vet. App. 563 (2007). The Veteran asserts that the examination was not sufficient, because he was not examined by a dentist, oral surgeon, or nerve specialist. However, review of the examination report reflects that the VA examiner, a physician's assistant, reviewed the claims file and medical records, interviewed the Veteran to obtain his medical history and history of symptomatology, performed a comprehensive examination, including a cranial nerve examination, and provided a rationale for her opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Accordingly, the Board concludes that the report is adequate. In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above, finds that the development of the claim has been consistent with the provisions of the VCAA. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to the VCAA notice. Accordingly, the Board will proceed to a decision on the merits. II. Analysis The Board has thoroughly reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which 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). Under 38 U.S.C.A. § 1154(a), VA is also required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the Federal Circuit held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." (footnote omitted). However, the Court has held that "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In order to establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) the 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). The Federal Circuit has recently held that for purposes of 3.303(b), where the veteran asserts entitlement to a chronic condition, but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by a showing of in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Disability compensation and VA outpatient dental treatment may be provided for certain specified types of service-connected dental disorders. For other types of service-connected dental disorders, the claimant may receive treatment only and not compensation. 38 U.S.C.A. § 1712; 38 C.F.R. §§ 3.381, 4.150, 17.161. Dental disabilities that may be awarded compensable disability ratings are set forth under 38 C.F.R. § 4.150. These disabilities include loss of teeth due to the loss of substance of the body of the maxilla or mandible and where the lost masticatory surface cannot be restored by suitable prosthesis, when the bone loss is a result of trauma or disease but not the result of periodontal disease. 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. Service trauma means an injury or wound produced by an external force during the service member's performance of military duties. Nielson v. Shinseki, 607 F.3d 802, 808 (Fed. Cir. 2010). The definition of service trauma excludes the intended result of proper medical treatment. Id. In Nielson the Federal Circuit left open the possibility of service connection for unintended consequences of in-service dental care. Id at 808. This is essentially the Veteran's contention in this case. The record does not show, and the Veteran does not contend that he lost teeth due to loss of substance of the body of the maxilla or mandible. Rather, the Veteran asserts that during service, he had four wisdom teeth extracted, which caused numbness on the left side of his face and neck that has worsened over time. Review of the Veteran's service treatment records reflects that his wisdom teeth were extracted in July 1987. A July 1987 dental treatment record noted "no complications" from the oral surgery. An August 1987 dental treatment record reflects that the Veteran had swelling and an abscess in his left buccal space. The last notation in the dental records (from mid August 1987) reflects that he was "healing well." The first indication in the record of numbness in the face or neck was in May 2008. The private treatment record noted the Veteran's complaint of numbness in his left face. The next record of numbness was in an October 2009 private treatment record where the Veteran complained of pain in his left shoulder, neck and pectoral region with some numbing sensation. The discomfort was described as a "steady", "pressure-like sensation...not triggered by exertion." The private treating physician performed a neurological exam, but found no deficits of sensation, motor function, or reflexes and cranial nerves seemed to be intact. The physician found that the neck was supple with no evidence of abnormalities. The Veteran's dental records reflect a November 2009 notation that the Veteran complained of a numbing sensation on his left side, but no abnormalities were noted. There are no further treatment records of record reflecting complaints, treatment or a diagnosis of nerve damage to the Veteran's left side of his face or neck. In September 2010, the Veteran was afforded a VA examination for his claimed nerve damage due to dental extraction. The Veteran reported that after having his wisdom teeth extracted, he had swelling on the left side of his face. He said that he was told that a bone had been chipped during the procedure and that he had an infection. He recalled receiving antibiotics. The Veteran stated that since his extractions, he has had a numbing sensation on the left side of his face that progressed to the area around his left ear and left side of his neck. The Veteran stated that he stretched and gnawed at the inside of his mouth, chronically chewed on the inside of his left cheek, and experienced anxiety and stress over the symptoms. The Veteran's cranial examination was normal. There was no tongue atrophy or fasciculations and no problems with speech, swallowing, tasting, and hearing. The left and right side gag reflex was absent. The Veteran's facial muscle expressions were normal. The examiner found no physical findings of nerve damage to the left face related to teeth extractions. Based on a review of the complete evidence of record, the Board concludes that the preponderance of the evidence weighs against a finding of entitlement to service connection on the Veteran's claim of nerve damage to the left face. The Board finds that the medical evidence provides the most competent and probative evidence in this case that there is no current disability to warrant a claim for service connection. Moreover, there is no evidence in the service treatment records that the Veteran sustained nerve damage from his wisdom teeth extraction. Although service records reflect that he had swelling and an infection, after the removals, they also show that he had no complications and was healing well. The records from his private dentist and private treating physician also do not indicate any nerve damage on his face or neck. The record reflects the Veteran's complaints of numbness on the left side of his face or neck, but shows no evidence of trauma upon neurological examination. There is also no indication in his private dental records that he had nerve damage or that any of his claims of facial numbness were attributed to any event in-service. Finally, the Veteran's September 2010 VA examination yielded no physical abnormalities or indications of nerve damage. Even if the Board found that there was a current disability to satisfy the first element of direct service connection, the Veteran has not established that the teeth extraction he underwent during service is related to the nerve damage he now claims. The Board has considered the Veteran's assertion that he was told that his jaw bone was chipped during the procedure, however the record is absent of complications due to surgery. The Veteran is competent to report on his medical treatment. See Jandreau, supra. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. Id.; see also Kahana v. Shinseki, 24 Vet. App. 428, 439 (2011) (Lance, J., concurring). In so doing, the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence, but may weigh this absence as a factor in determining credibility of lay evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). The Board must consider whether there is corroborating evidence or evidence suggesting that lay evidence may be mistaken or untruthful. Kahana, 24 Vet. App. 439. Here, service treatment records do not reflect any complications from the Veteran's surgery and it was observed that he was "healing well." Furthermore, the Veteran's private dental records do not show any report of a chipped jaw bone either by the Veteran or by the dentist upon examination. Therefore, the Board finds that the Veteran's statement that his jaw bone was chipped during the extraction of his wisdom teeth not to be credible. In addition, the Board considered the Veteran's statements as to the cause of his numbness on the left side of his face and neck. In this regard, the Court has held that a claimant is competent to attest to factual matters of which he has personal knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, although the Veteran is competent to report what comes to him through his senses, there is no evidence that he has medical knowledge or training that would permit him either to diagnose, or determine the etiology of a complex disorder of the nerves. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Jandreau at 1377 (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). As such, although the Board acknowledges the Veteran's belief that his current symptoms are the result of service, his statements in this regard are not deemed competent. Accordingly, the Board concludes that the most probative evidence is against the Veteran's claim for service connection for nerve damage to the left face. The Board has considered the applicability of the "benefit-of-the doubt" rule, however, as there is not an approximate balance of evidence, that rule is not applicable in this case. See U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for nerve damage to the left face is denied. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs