Citation Nr: 1508399 Decision Date: 02/26/15 Archive Date: 03/11/15 DOCKET NO. 09-45 997 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for temporomandibular joint (TMJ) disorder, bruxism and broken tooth at number 14, to include as secondary to the service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from January 1990 to May 1990, from November 1990 to May 1991, and from February 2003 to July 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the VA Regional Office (RO) in Cleveland, Ohio. Due to the location of the Veteran's residence, jurisdiction of her appeal is with the RO in Denver, Colorado. In November 2014, the Veteran testified at a hearing conducted before the undersigned. A transcript of the hearing has been associated with the claims file. The Veteran's appeal was originally certified to the Board as service connection for a broken tooth at number 14. However, at the hearing, it was discussed that the issue should be expanded as set forth on the first page to encompass the Veteran's contentions. As such, the Board considers the issue of service connection for TMJ disorder, bruxism and broken tooth at number 14, to include as secondary to the service-connected PTSD to be on appeal. The Veteran has submitted new evidence, which relates to the issue on appeal. She specifically waived her right to have the RO consider this evidence in the first instance. FINDINGS OF FACT 1. The Veteran has TMJ disorder and bruxism and that are as likely as not aggravated by her service-connected PTSD. 2. The Veteran's broken tooth at number 14 was repaired by a crown. CONCLUSIONS OF LAW 1. The criteria for service connection for TMJ disorder and bruxism have been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2014). 2. The criteria for service connection for broken tooth at number 14 have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.381(b) (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist With regards to a TMJ disorder and bruxism, the Board is granting service connection. Consequently, no discussion of VA's duties to notify and assist is necessary for those disorders. As for the Veteran's claimed broken tooth at number 14, while VA has statutory and regulatory notice and duty to assist provisions under the Veterans Claims Assistance Act (VCAA), those provisions are not applicable where resolution of the claim is as a matter of law. See Manning v. Principi, 16 Vet. App. 534, 542 (2002) (holding that the VCAA has no effect on appeal limited to matter of law); see also 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). Accordingly, VA's duties to notify and assist as to the Veteran's claim for service connection for a broken tooth at number 14 are not applicable here and need not be addressed. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Any disability that is proximately due to or the result of a service-connected disease or injury is considered service connected, and when thus established, this secondary condition is considered a part of the original condition. 38 C.F.R. § 3.310(a). In this regard, the Board notes that there has been an amendment to the provisions of 38 C.F.R. § 3.310 during the pendency of this appeal. See 71 Fed. Reg. 52744 -47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the United States Court of Appeals for Veterans Claims ruling in Allen v. Brown, 7 Vet. App. 439 (1995), it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of service connection based on aggravation may be made. This had not been VA's practice, which strongly suggests that the change amounts to a substantive change in the regulation. Given what appear to be substantive changes, and because the Veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which version favors the claimant. Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Treatment records show that the Veteran cracked tooth number 14 in February 2004, during her military service. Her records indicate that it was repaired by a crown. One of the February 2004 records shows that the Veteran ground her teeth; she was diagnosed with TMJ discomfort. An October 2004 VA general medical examination shows that the Veteran reported that she had ground one of her teeth down in her sleep until it cracked. The examiner indicated that such pointed to rather severe psychiatric stress. A dental examination that same month shows that her TMJ was within normal limits. A January 2006 letter from the Veteran's dentist, C.J., D.D.S., shows that as evidenced by their dental records, the Veteran had had a history of occlusal stress related problems from TMJ pain. This letter also includes a summary of the Veteran's treatment; it indicates that the occlusal stress resulted in the cracked tooth. Dr. C.J. included a medical article regarding patients with PTSD having stress-related dental problems including temporomandibular disorder and bruxism. At a June 2012 VA examination, no diagnosis of TMJ disorder was made. Based on a review of the evidence, the Board concludes that service connection for TMJ disorder and bruxism as secondary to the service-connected PTSD is warranted. Although the VA examiners have not diagnosed the Veteran with a TMJ disorder, the Veteran's private dentist has indicated that she has a TMJ disorder and bruxism. Bruxism is defined as the involuntary, nonfunctional, rhythmic or spasmodic gnashing, grinding, and clenching of teeth, usually during sleep, sometimes leading to occlusal trauma. Causes may be related to repressed aggression, emotional tension, anger, fear, and frustration. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 260 (31st ed. 2007).) In this case, the Veteran has been shown to grind her teeth, indicating that she has bruxism. Affording the Veteran the benefit-of-the-doubt, as the evidence is in equipoise as to whether she does have a TMJ disorder and bruxism, the Board concludes that the evidence supports a finding of a diagnosis of TMJ disorder and bruxism. The evidence also shows that the Veteran's service-connected PTSD, currently evaluated as 70 percent disabling, aggravates her TMJ disorder and bruxism. Therefore, when affording the Veteran the benefit-of-the-doubt, the Board finds that the evidence shows that her TMJ disorder and bruxism are secondary to her service-connected PTSD. The Board notes that the Veteran's claim has been pending since 2004; consequently, a pre-aggravation baseline level of disability is not needed. In this case, the medical evidence of record suggests that the Veteran's service-connected PTSD aggravates her TMJ disorder and bruxism. Of particular importance to the Board are the October 2004 examination showing that the Veteran's teeth grinding pointed to rather severe psychiatric stress, as well as the January 2006 opinion from Dr. C.J. discussed above. Therefore, in light of the VA examination as well as Dr. C.J.'s opinion, the evidence establishes that the Veteran's service-connected PTSD aggravates her TMJ disorder and bruxism, supporting a finding of service connection on a secondary basis. Regarding the Veteran's cracked tooth at number 14, it cannot be service connected for compensation purposes unless it is, inter alia, not treatable or replaceable. See 38 C.F.R. § 3.381(b) (providing that replaceable missing teeth and treatable carious teeth are not compensable disabilities); § 4.150, Diagnostic Code 9913 (rating loss of teeth due to the loss of the substance of the body of maxilla or mandible). As noted above, the Veteran's cracked tooth has been repaired by a crown. Consequently, although the evidence shows that the Veteran's cracked tooth resulted from her now service-connected TMJ disorder and bruxism, as it has been repaired, it is not a disability for compensation purposes. However, dental disorders that are not compensable nonetheless may be service connected for purposes of eligibility for VA dental treatment. In this regard, in the October 2009 statement of the case (SOC), the Veteran was notified that she should contact the nearest VA Medical Center (VAMC) to determine her eligibility for outpatient dental services. There are various categories of eligibility for VA outpatient dental treatment, including veterans having a compensable service-connected dental condition (Class I eligibility); one-time treatment for veterans having a noncompensable service-connected dental condition (Class II eligibility); those having a noncompensable service-connected dental condition adjudicated as resulting from a combat wound or other service trauma (Class II(a) eligibility); those who were detained as a POW (Class II(b) and Class II(c) eligibility); those who made prior applications for, and received, dental treatment from VA for noncompensable dental conditions but were denied replacement of missing teeth that were lost during any period of service prior to his or her last period of service (Class IIR (Retroactive) eligibility); those having a dental condition professionally determined to be aggravating disability from an associated service-connected condition or disability (Class III eligibility); those whose service-connected disabilities are rated at 100 percent by schedular evaluation or who are entitled to the 100 percent rating by reason of individual unemployability (Class IV eligibility); those who participate in a rehabilitation program under 38 U.S.C. chapter 31 (Class V eligibility); and those who are scheduled for admission or who are otherwise receiving care and services under chapter 17 of 38 U.S.C. (Class VI eligibility). 38 U.S.C.A. § 1712 ; 38 C.F.R. § 17.161. In light of the Board granting service connection for TMJ disorder and bruxism, if the RO determines that such disability is compensable, the Veteran would meet the criteria for Class I eligibility. Following the implementation of the grant of service connection for TMJ disorder and bruxism, the Veteran is reminded that she should contact the nearest VAMC to determine her eligibility for future dental treatment. For the reasons set forth above, after considering all of the evidence of record, the Board concludes that a finding of service connection for TMJ disorder and bruxism is warranted. Service connection for TMJ disorder and bruxism is therefore, granted. As for cracked tooth at number 14, as it has been repaired, there is no entitlement under the law for compensation; to this extent, the Veteran's claim is denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to service connection for TMJ disorder and bruxism is granted. Entitlement to service connection for broken tooth at number 14 for compensation purposes is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs