Citation Nr: 1336128 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 06-17 062 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for bruxism. 2. Entitlement to service connection for temporomandibular joint dysfunction (TMJ), to include as secondary to a service-connected disorder. 3. Entitlement to service connection for an acquired psychiatric disorder manifested by stress and anxiety, to include as secondary to a service-connected disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from May 1967 to July 1978. These matters are before the Board of Veterans' Appeals (Board) on appeals from rating decisions of the Jackson, Mississippi, Regional Office (RO) of the Department of Veterans Affairs (VA). A Travel Board hearing was held in September 2008 before the undersigned Veterans Law Judge (VLJ), sitting in Washington, D.C. A copy of the transcript of that hearing is of record. The issues on appeal were before the Board and were remanded in November 2008 and September 2011. The following determinations are based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." FINDINGS OF FACT 1. No specific dental infirmity, to include bruxism or TMJ, was noted at the time of the Veteran's examination, acceptance, and enrollment in service. 2. The evidence linking current bruxism etiologically to service (by incurrence) is in relative equipoise with the evidence against the claim. 3. The Veteran's TMJ has been associated with service-connected bruxism. 4. The Veteran's anxiety disorder has been associated with service-connected disorders, to include bruxism and TMJ. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, bruxism was incurred in service. 38 U.S.C.A. §§ 1110, 1111, 1131, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.306 (2012). 2. TMJ is proximately due to or caused by the Veteran's bruxism. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2012). 3. Anxiety disorder is proximately due to or caused by the Veteran's service-connected disorders, to include bruxism and TMJ. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify him what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012). Subsequent judicial decisions have clarified the duties to notify and assist imposed by the VCAA, to include Pelegrini v. Principi, 18 Vet. App. 112 (2004), Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 ((Fed. Cir. 2006), and Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Considering the claims of entitlement to service connection on appeal in light of the above-noted legal authority, and in light of the Board's favorable dispositions of these matters, the Board finds that all notification and development action needed to fairly resolve the claims has been accomplished. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303(a) (2012). Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2012). Bruxism is not a "chronic disease" listed under 38 C.F.R. § 3.309(a) (2012), therefore 38 C.F.R. § 3.303(b) does not apply. See Walker v. Shinseki, 708 F.3d 1331, (Fed. Cir. 2013). The Board must assess the credibility and weight of all the 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. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. Historically, the Veteran's claim for service connection for dental problems (to include bruxism) was denied by the RO in 1991 and confirmed by the Board in 1994. In a November 2008 Board decision, the claim was reopened and remanded for additional development. The claim was remanded again in September 2011 for additional development, and a medical expert's opinion was obtained in April 2013. It is the Veteran's assertion that his bruxism, TMJ, and a psychiatric disorder, are related to active service. He argues that his dental conditions, if preexisting service, were aggravated therein. He also argues that his psychiatric symptoms of anxiety and stress resulted from his dental problems. See, e.g., his testimony at the September 2008 hearing. Every person employed in the active military, naval, or air service shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the 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. See 38 U.S.C.A. §§ 1111, 1137 (West 2002 & Supp. 2012). In July 2003, the VA General Counsel issued a precedent opinion holding that to rebut the presumption of soundness in 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See VAOPGCPREC 3-2003 (July 16, 2003). The claimant 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. Id. See also Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). Background The Veteran's service treatment records (STRs) include enlistment examination report dated in October 1966. No dental problems were noted. Physical inspection in May 1967 disclosed no additional defects. Accordingly, no defects, infirmities, or dental problems, to include bruxism or TMJ, were noted at the time of the Veteran's examination, acceptance, and enrollment in service, and the presumption of soundness attaches. See 38 U.S.C.A. § 1111 (West 2002 & Supp. 2012). See also Doran v. Brown, 6 Vet. App. 283, 296 (1994). There is a photograph of the Veteran's teeth dated in June 1967 included in the STRs. These records also include references to extraction of teeth during service (1968), bruxes (1974), and bruxism (1978). A VA psychiatric examination was conducted in March 2008. It was the examiner's opinion that the Veteran had anxiety disorder that was related to complaints of TMJ and bruxism. She further noted that the Veteran's emotional management style tended to be to repress negative emotions which then were expressed through physical symptoms and behaviors. Clinical experience dictated the knowledge that teeth clinching and teeth grinding could be associated with unexpressed emotion, tension, aggression, and/or other distressing emotions. It was clear, she stated, that in this case, his lack of awareness of his emotions insured that they would be repressed and then expressed through clinching and grinding. A VA examination addressing the etiology of dental problems was provided in April 2008. The examiner found that there was clear evidence that the Veteran had suffered from bruxism for many years given the amount of wear on his teeth. He had been treated reasonably successfully with restorations and occlusal guards in private practice. At this exam, the examiner found that the Veteran produced no information of how his bruxism or his TMJ were related to or caused by service. As noted in the Board's November 2008 remand, the April 2008 report was found to be of little probative value, primarily due to the speculative nature of the examiner's opinion. Additional development was requested. Addendum to the April 2008 examination, dated in August 2009 was added to the record. At that time, the examiner found that bruxism existed prior to service but was not aggravated therein. He also opined that TMJ was related to the bruxism and also most likely began prior to service as bruxism was often a manifestation of TMJ. The examiner further stated that he could not make a determination "without resorting to speculation" as to whether symptoms related to TMJ were caused by or exacerbated by military service or when they actually began. As pointed out by the Board in its September 2011 decision, the Board has been admonished by the United States Court of Appeals for Veterans Claims (Court) for relying on medical opinions that were unable to establish required linkage, without resorting to mere speculation, as cause for denying a veteran's claims. See Jones v. Shinseki, 23 Vet. App. 382 (2012). In Jones, the Court noted it was unclear whether the examiners were unable to provide this requested definitive medial comment on etiology because they actually were unable to since the limits of medical knowledge had been exhausted, or, instead, for example, needed further information to assist in making this determination (e.g., additional records and/or diagnostic studies) or other procurable and assembled data. The psychiatric examination there was ruled not to be probative on direct basis grounds in that the examiner did not adequately discuss the lack of continuity of psychiatric symptoms after service. Additional examination was requested in a September 2011 remand. Subsequently, in an October 2011 VA report, the examiner opined that the Veteran's bruxism was an exacerbation of symptoms related to his TMJ, both of which preexisted service. He added that the Veteran's approximate 11 years in the military would have resulted in degeneration of his dentition beyond that which was present at his entrance exam. However, he further opined that he would have to resort to speculation to determine if the disorders were aggravated beyond natural progression. Again, it is noted that 'resort to speculation" language was used by the examiner in the 2011 report. Due to the inadequacy of the above mentioned VA report, the Board obtained a specialist's opinion. In April 2013, the Board requested an opinion from a medical expert. The examiner was to opine, in part, as to whether the inservice dental photo showed that TMJ and/or bruxism clearly and unmistakably preexisted service. In a report added to the record in June 2013, the specialist noted that the record was reviewed. It was his opinion that it was more likely than not that bruxism existed prior to service, "but it [was] not clear and unmistakable that the Veteran had bruxism, and there is no evidence that TM[J] existed at or prior to entry into the service in May of 1967." In the specialist's report, he noted excessive wear on the dentition in the photo taken near entry into service. He further explained that bruxism is a para-functional or maladaptive habit of grinding of the teeth, often with considerable force. Results of bruxism included sore muscles, uneven and accelerated wear of dentition and damage to restorations, and eventually damage to the TMJ and surrounding structures. The examiner added that TMJ was a separate syndrome or disease pattern than bruxism, but added that there was sufficient scientific literature supporting the fact that bruxism could contribute and be a major factor in the creation of TMJ. The examiner further noted that the Veteran was treated for bruxism during service, and post service records also showed treatment, to include the use of mouth guards. Severe bruxism was noted shortly after service in February 1979, but some subsequently dated records did not indicate further problems. It was his conclusion that neither the Veteran's bruxism habit nor his TMJ had a clear onset during service and neither could be related to any event of service. He also concluded that while it was likely that bruxism pre-existed service, this was not clearly and unmistakably shown. There was no evidence that TMJ dysfunction existed at or prior to entry into service in May 1967. Of note is the fact that there are excerpts from medical treatises of record, many of which attest to a relationship between bruxism and TMJ. Analysis The findings of a physician are medical conclusions that the Board cannot ignore or disregard. Willis v. Derwinski, 1 Vet. App. 66 (1991). However, the Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App 614 (1992). As true with any piece of evidence, the credibility and weight to be assigned to these opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board is obligated to analyze the credibility and probative value of all evidence, account for the evidence that it finds persuasive or unpersuasive, and provide reasons for its rejection of any material evidence favorable to the veteran. Meyer v. Brown, 9 Vet. App. 425 (1996); Eddy v. Brown, 9 Vet. App. 52 (1996); Gabrielson v. Brown, 7 Vet. App. 36 (1994); Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson, 2 Vet. App. at 618; Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Greater weight may be placed on one examiner's opinion than another depending on factors such as the reasoning employed by the physicians and whether (and the extent to which) they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). An etiological opinion is to be viewed in its entire context and not characterized solely by the medical professional's choice of words. See Perman v. Brown, 5 Vet. App. 237, 241 (1993); Lee v. Brown, 10 Vet. App. 336, 338 (1997). In this case, as acknowledged above, there are flaws in medical opinions of record. The Board finds the medical expert's opinion obtained in 2013 to be a thorough review of the entire claims file, and finds the opinions offered to be of great probative value. However, while it may be argued that his opinions are not supportive of the Veteran's claims, the Board finds that his statements can also be found to suggest (to the point of relative equipoise) that the Veteran's preexisting bruxism was incurred during service as he concluded that the condition likely but not clearly and unmistakably existed prior to service; and that current TMJ is secondary thereto as he himself noted was evidenced in medical literature. The complex nature of the medical questions at issue in this case is evident by the examiners' opinions of record that could not provide decisive opinions, primarily regarding aggravation of dental conditions during service. The complexity of the medical questions, as well as the arguably contradictory opinions provided in the most recent 2013 report, provide that the evidence is in relative equipoise as to the dental claims at issue. Moreover, the Board finds that the March 2008 psychiatric examination is adequate to address the question of whether anxiety disorder is secondarily service connected to the Veteran's dental conditions. Based on the medical and lay evidence in this case, the Board finds the evidence for and against a relationship between current bruxism and service is in relative equipoise. Resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for bruxism is warranted. That being said, the probative evidence reflects that TMJ and anxiety disorder are secondary thereto. ORDER Service connection for bruxism is granted. Service connection for TMJ is granted. Service connection for anxiety disorder is granted. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs