Citation Nr: 1342095 Decision Date: 12/19/13 Archive Date: 12/31/13 DOCKET NO. 08-04 822 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral flat feet. 2. Entitlement to service connection for residuals of elective corrective surgery for a congenital dental facial deformity. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran had active military service from December 2001 to January 2007. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, that, in pertinent part, denied the Veteran's claims for service connection for bilateral flat feet and a congenital dental facial deformity, status post elective surgery for correction, claimed as jaw pain. Jurisdiction of the Veteran's case is currently with the VA RO in St. Petersburg, Florida. This case was before the Board in February 2012 when it was remanded for additional development. In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim. The VVA file includes an October 2013 Informal Hearing Presentation from the Veteran's representative. The other documents in the VVA file are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The issue of service connection for bilateral flat feet is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. FINDINGS OF FACT 1. The Veteran's dental facial deformity is a congenital or developmental defect. 2. The Veteran's congenital dental facial deformity was not subject to, or aggravated by, a superimposed disease or injury during service which resulted in additional disability. 3. Even if his dental facial deformity were considered to be a congenital disease, there is clear and unmistakable evidence that it existed prior to service and was not aggravated by service beyond its natural progression. CONCLUSION OF LAW A congenital dental facial deformity not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 4.9 (2013); VAOPGCPREC 82-90 (July 18, 1990). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in February 2007 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in August 2007. Nothing more was required. VA also has a duty to assist the Veteran by making all reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c). Regarding VA's duty to assist, all appropriate development to obtain the Veteran's pertinent medical records has been completed. The Veteran's available service treatment records (STRs) are associated with his claims file. Pertinent post-service treatment records have been associated with the claims file. He has not identified any outstanding, available evidence, to include medical records, which could be obtained to substantiate the claims. The Veteran was provided the appropriate VA examinations, most recently in March 2012. This case was remanded in February 2012 for additional development (specifically, to obtain a VA medical opinion in this matter). The March 2012 examination report reflects that the Veteran's records were reviewed, considered the Veteran's lay history/complaints, and contains the requested opinion. The requested opinion is supported by rationale. The examination is more than adequate. The Board finds that there has been substantial compliance with its remand instructions and additional remand is not required. D'Aries v. Peake, 22 Vet. App. 97 (2008) (noting that substantial rather than strict compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The Board notes that the findings of the March 2012 opinion did not include the precise wording that was used in the Remand. Specifically, the examiner used the "as likely as not" evidentiary standard versus the requested "clear and unmistakable evidence" standard. Such does not render the opinion inadequate. There was no prejudice to the Veteran. The evidence/findings made by the examiner are more than sufficient to enable the Board to make a decision on the email under the correct evidentiary requirement. Indeed, it is the Board that is the finder of fact not the examiner. Accordingly, the Board is satisfied that VA has complied with its duties to notify and assist the Veteran. II. Residuals of Elective Corrective Surgery for a Congenital Dental Facial Deformity The Veteran claims that his current residuals of corrective jaw surgery, including jaw pain and popping, are related to his military service. Service connection may be established for a disability resulting from an injury suffered or disease contracted in the line of duty, or for aggravation of a pre- existing injury or disease in the line of duty. 38 U.S.C.A. § 1110. Regulations also provide that 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 which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Congenital or developmental defects are not diseases or injuries within the meaning of the applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9. VA's General Counsel has further explained that service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin, as long as the evidence as a whole establishes that the familial conditions in question were incurred or aggravated during service within the meaning of VA laws and regulations. VAOPGCPREC 82-90 (July 18, 1990). VA's General Counsel has also expressly stated that the terms "disease" and "defects" must be interpreted as being mutually exclusive. The term "disease" is broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. On the other hand, the term "defects" would be definable as structural or inherent abnormalities or conditions that are more or less stationary in nature. See VAOPGCPREC 82-90 (July 18, 1990). VA General Counsel has further noted that if, during service, superimposed disease or injury occurs, service connection may be warranted for the resultant disability. See Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993) (citing Hunt v. Derwinski, 1 Vet. App. 292 (1991)); VAOPGCPREC 67-90 (July 18, 1990). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. STRs include an October 2001 service entrance examination that indicated that there was no evidence of any dental defects. A December 2001 dental processing evaluation similarly revealed negative potential Class 3 findings. An August 2004 STR notes that the Veteran complained of crowded teeth and an inability to bite into food. He underwent a comprehensive evaluation for a high angle, skeletal Class II open bite. Color photos taken at the time show his overbite. An undated orthodontic treatment plan documents that the Veteran had Class III malocclusion, skeletal class II, for which orthodontic treatment and orthographic surgery was recommended. A September 20, 2004 Commander's Concurrence Form indicates that the Veteran had a dental malocclusion that impaired his dental function and may adversely affect the longevity and health of his dentition that existed prior to entry into service. An August 2006 operative report indicates that the Veteran was initially seen in August 2004 with complaints of an inability to bite into food and temporomandibular jaw (TMJ) problems that consisted of joint popping with wide opening. He was diagnosed with skeletal class II, maxillary transverse deficiency, apertognathia, mandibular hypoplasia, and microgenia. Orthodontic treatment was completed and the Veteran's TMJ symptoms improved but he had right TMJ popping with wide opening. Maxilla surgery was performed. A second surgery was performed in October 2006 to treat congenital microgenia. On the medical assessment completed in November 2006, prior to his discharge, it was noted that the Veteran said he had problems with jaw/chin surgery Following service, a March 2007 VA examination report notes the Veteran's history of extensive jaw surgery to correct a significant overbite in August 2006. His lower jaw was moved forward and his upper jaw was widened. Braces were worn on both jaws for two years. The Veteran complained of left and right jaw pain that radiated into his chin when he opened his mouth or chewed anything hard and experienced cracking in his jaw when he opened and closed his mouth. There were no teeth replaced. Upon clinical evaluation and review of X-ray studies, the examiner reported "[o]bvious problems with both [j]aws since the August 2006 surgery [with a] [n]eed to wait and see whether orthopedic treatment of the jaw will stabilize and centrally position the teeth and whether [the Veteran] will be free of pain." Periodontal findings were normal and it was noted that opening the Veteran's mouth was difficult because of bands that resulted in gingivitis and isolated bleeding. In his July 2007 notice of disagreement, the Veteran said that he was not seeking a dental issue but "rather an orthopedic" issue related to the jaw and its corrective surgery that was unrelated to his teeth. In his January 2008 substantive appeal, the Veteran noted that, although a March 2007 VA examiner reported that his condition would be stable once the braces were removed, his braces were off "and still the condition exists". A March 2012 VA dental and oral conditions examination report included diagnoses of temporomandibular joint disorder (TMJD); skeletal class II, maxillary transverse deficiency; apertognathia; and mandibular anterior posterior hypoplasia. Following a review of the claims file, interview, and examination, the examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner determined that the Veteran had a congenital dental facial deformity prior to enlistment. It was noted that in August 2004, the Veteran complained of an inability to bite food in the front of his mouth and soreness of the TMJ, which had occasional popping present at that time. The examiner emphasized that there was no evidence of history of injury from the time of entry to this time period was found, and that the Veteran elected to have surgery to correct the congenital deformity. He stated that the Veteran was already having problems with TMJ prior to the surgery, which, if left untreated would have become worse over time. Acknowledging his current complaints of crepitus associated with the right TMJ and discomfort when eating food that involved a lot of chewing (such as steak), the examiner found no evidence show any incidences that cause any aggravation to the preexisting condition. The examiner noted that with having a history of congenital jaw problems prior to entering the military and prior to the 2006 surgery, his jaw problems would have progressed to its current state, if not worse, with or without the in-service surgery to correct a congenital problem. Based on the foregoing, the Board finds that service connection for the Veteran's dental facial deformity, a congenital or developmental defect, cannot be granted in this case, as it is not considered a disease or injury for VA purposes. See 38 C.F.R. §§ 3.303(c), 4.9. The medical evidence shows that the dental facial deformity is a congenital defect that pre-existed the Veteran's entrance into service. The Board acknowledges that the March 2012 VA examiner referred to the Veteran's condition as a congenital deformity, and not a congenital or developmental "defect." However, that taken as a whole, the VA examiner's description and findings that the Veteran had anatomical deformity of the jaw that had existed prior to service conveys the notion that it was a defect. There is no medical evidence to the contrary. Therefore, as a congenital defect, dental facial deformity is not subject to service connection. Moreover, the March 2013 VA examiner determined that the Veteran's jaw complaints (jaw pain and popping due to TMJ) are due to the congenital deformity, and were not caused or aggravated by service. No superimposed injury in service is shown so as to warrant service connection. The examiner made a specific finding to that effect - that no additional disability arose because of a superimposed disease or injury. He emphasized that all the Veteran's in-service jaw complaints were related to his congenital defect, and that there was no evidence of any injury prior to the in-service elective surgery. The examiner stated that the Veteran was already having problems with TMJ prior to the surgery, which, if left untreated would have become worse over time. Essentially, his symptoms after surgery were no worse than before surgery. The evidence of record fails to suggest that the Veteran suffers any additional disability due to the aggravation of his congenital abnormality during service. Consideration has also been to whether service connection would be warranted for the Veteran's jaw disorder if was considered to be a congenital disease instead of defect. In that regard, while the examiner's findings were in line with the Veteran's deformity being a defect, the Board does acknowledge that he stated the Veteran's jaw condition would have worsened over time if it hadn't been treated in service. A disease generally refers to a condition that is considered capable of improving or deteriorating, while a defect is generally not considered capable of improving or deteriorating. VAOPGCPREC 82-90 (1990) (citing Durham v. United States, 214 F.2d 862, 875 (D.C. Circuit 1954). However, even it were considered to be a congenital disease, service connection for a jaw disorder would not be warranted. Service connection may be granted for congenital diseases, but not congenital defects. Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009) (discussing VAOPGCPREC 82-90); Monroe v. Brown, 4 Vet. App. 513, 515 (1993). When no pre-existing medical condition is noted upon entry into service, a Veteran is presumed to have been sound upon entry. 38 U.S.C.A. § 1111 (West 2002); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The presumption of soundness applies if a veteran's congenital disease is not noted at entry. See Quirin, 22 Vet. App. at 396-97; Monroe, 4 Vet. App. at 515. The burden then falls on the Government to rebut the presumption of soundness by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. Wagner, 370 F.3d at 1096 ; Bagby, 1 Vet. App. at 227. Accordingly, [o]nce the presumption of soundness applies, the burden of proof remains with the Secretary on both the preexistence and the aggravation prong; it never shifts back to the claimant. In particular, even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness...the burden is not on the claimant to show that his disability increased in severity; rather, it is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012) (emphasis added). This burden must be met by "affirmative evidence" demonstrating that there was no aggravation. See id. The burden is not met by finding "that the record contains insufficient evidence of aggravation." See id. The evidence supports a finding that there is clear and unmistakable evidence that the Veteran's dental facial deformity existed prior to service and was not aggravated by service beyond its natural progression. The VA examiner clearly and unambiguously determined that the Veteran's jaw disorder preexisted his service. He stated such numerous times and supported his finding by describing the condition as congenital deformity. Dorland's Medical Dictionary defines deformity as "distortion of any part or general disfigurement of the body; malformation." See Dorland's Illustrated Medical Dictionary 481 (30th ed. 2003). Next, as noted above, the examiner stated the deformity would likely be worse today if the in-service had not been performed. He stated that the condition would have progressed to its current state, if not worse, with or without the surgery the Veteran had in service to correct the congenital problem. The Board interprets this mean that any changes that may of occurred to the jaw disorder in service, which was not even shown in service, would have occurred regardless of service. The actions taken in service, in fact, served to correct the problem. Consideration has been given to the Veteran's assertion that his dental facial deformity was aggravated by his active service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a congenital dental facial defect falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). This is not the type of condition that are readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that an expert medical opinion was needed to address the root causes of the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). That is, although the Board readily acknowledges that Veteran is competent to report episodes of jaw popping and pain, there is no indication that the Veteran is competent to provide an opinion that the reported in-service symptoms represented superimposed disease or injury. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating jaw disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. The evidence shows that the Veteran's claimed disability is a congenital defect that was not aggravated by superimposed disability during active military service. Alternatively, if it were considered to be a congenital disease, there is clear and unmistakable evidence that the Veteran's dental facial deformity existed prior to service and was not aggravated by service beyond its natural progression. Service connection is not warranted. ORDER Service connection for residuals of elective corrective surgery for a congenital dental facial deformity is denied. REMAND The Veteran seeks service connection for bilateral flat feet that he asserts worsened in service due to his wearing boots provided by the military. The Veteran underwent a VA examination in March 2012, and the examiner opined that the Veteran has pes planus that existed prior to service and not aggravated therein. Although the examiner stated that he reviewed the claims file, he did not discuss or account for the Veteran's complaints of foot pain in service or otherwise provide any rationale for his opinion. The Court has held that a remand by the Board confers on a veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268 (1998). Moreover, the Court has held that, once 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); 38 C.F.R. § 3.159(c)(4) (2013). Although there is no requirement imposed on a medical examiner to provide detailed reasons for an opinion, Ardison v. Brown, 6 Vet. App. 405, 407 (1994), it is incumbent on the VA examiner to consider all of the relevant evidence before forming an opinion. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Here, without a discussion of the complaints and findings noted during the Veteran's period of active duty, the Board cannot conclude that the VA examiner's opinion is based upon consideration of all of the relevant evidence. Thus, the March 2012 VA opinion is inadequate. Accordingly, the case is REMANDED for the following action: 1. Return the claims folder to the examiner who conducted the March 2012 VA foot examination (if available) and ask the examiner to review closely the entire record, to include service treatment records, and to prepare an addendum addressing the following question: For the Veteran's bilateral pes planus, which was diagnosed at enlistment, is there clear and unmistakable evidence the bilateral pes planus was not worsened beyond the natural progress of the disability. The examiner should be advised that temporary or intermittent flare-ups of a pre-service condition, without evidence of worsening of the underlying condition, are not sufficient to be considered aggravation. The examiner is requested to provide thorough reasons and bases in support of his opinions, and should specifically address the Veteran's complaints of foot pain noted in service. Rationale should be provided with the requested opinion. If the examiner cannot provide an opinion without resorting to mere speculation, such should be stated with a supporting explanation. If this examiner is not available, the Veteran is to be scheduled for a new VA foot examination, in which the examiner is to answer the above question. Again, a complete rationale must be provided for all opinions. 2. Then, the RO or the AMC should readjudicate the claim. If the benefit sought on appeal remains denied, he and his representative should be furnished a supplemental statement of the case and provided the requisite appropriate opportunity to respond before the claims file is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. See 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ MICHAEL HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs