Citation Nr: 1523617 Decision Date: 06/03/15 Archive Date: 06/16/15 DOCKET NO. 06-17 342 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for a disability manifested by chest pains other than the service-connected muscle group XXI injury. 2. Entitlement to service connection for a jaw condition. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from March 1975 to March 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which, in pertinent part, did not reopen previously denied claims of service connection for a rib injury, chest pains and a jaw injury. In April 2009, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims folder. These matters were remanded by the Board in September 2009. In January 2013, the Board, reopened the previously denied claims of service connection for a rib injury, chest pains and a jaw injury, and remanded these matters back to the RO for additional development of the record. In a June 2013 rating decision, the RO granted service connection for an injury to muscle group XXI (claimed as a rib injury). In February 2014, the Board remanded the remaining two issues on appeal of entitlement to service connection for chest pains and a jaw injury. As of April 8, 2013, the Veteran's combined schedular rating is 100 percent, and he has also been found unemployable due to his service-connected disabilities. In an October 2014 rating decision, the RO addressed the issue of entitlement to an increased rating for muscle group XXI injury with the symptoms of chest pain incorporated into the service-connected injury. In addition to the paper claims file, there are Virtual VA and VBMS files associated with the Veteran's claim. The documents in the electronic files have been reviewed. The issue of entitlement to service connection for a disability manifested by chest pains other than the service-connected muscle group XXI injury is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT The Veteran's claimed jaw pain with sensitivity and occasional clicking is unrelated to service. CONCLUSION OF LAW A jaw disorder was not incurred in service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION At the outset, VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). By correspondence dated in November 2004, issued prior to the initial adjudication of the claims in February 2005, VA notified the Veteran of the information needed to substantiate and complete his claim, to include notice of the information that he was responsible for providing, the evidence VA would attempt to obtain, and how to reopen a previously denied claim. After the claim was reopened and remanded pursuant to a January 2013 Board decision, the RO issued a subsequent duty-to-assist letter in February 2013 which addressed the claim of service connection for a jaw condition. The letter notified the Veteran of the information needed to substantiate and complete his claims, to include notice of the information that he was responsible for providing, the evidence VA would attempt to obtain, and how VA assigns disability ratings and effective dates for all grants of service connection. The issue was subsequently readjudicated in a June 2013 Supplemental Statement of the Case, with the most recent Supplemental Statement of the case issued in November 2014. The Veteran's service treatment records are associated with the record and pertinent private and VA medical records have been secured. He was afforded a VA examination in May 2014 to address the jaw injury. An additional VA opinion was provided in August 2014. The examiner's findings were based on review of the service treatment records, the VA treatment records, and an interview with the Veteran. The examinations and addendum opinions are adequate because the clinicians discussed the Veteran's medical history, described his disability and associated symptoms in detail, and supported all conclusions with analyses based on objective testing and observations. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran was afforded a Board hearing in April 2009. The VLJ who conducted the hearing noted the current appellate issues at the beginning of the hearing, and asked questions to clarify the appellant's contentions and treatment history. The appellant provided testimony in support of his claims and expressed his contentions clearly. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Moreover, neither the appellant nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. The appellant has not identified any pertinent evidence that remains outstanding with respect to these claims. VA's duty to assist is met. II. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to establish service connection, there must be lay or medical evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease and the current disability. See 38 U.S.C. § 1110; Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed .Cir.2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed.Cir.2004); 38 C.F.R. § 3.303 (2014). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) (West 2014); 38 C.F.R. § 3.303(a) (2014); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also 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). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person 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 (Fed. Cir. 2009). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Insofar as the appellant presents an argument of continuity of symptomatology, the U.S. Court of Appeals for the Federal Circuit recently held in Walker v. Shinseki that service connection can be based on continuity of symptomatology only with respect to the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed.Cir. 2013). The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). 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. It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In making that decision, the Board must determine the probative weight to be ascribed as among multiple medical opinions, and state the reasons and bases for favoring one opinion over another. See Winsett v. West, 11 Vet. App. 420, 424-25 (1998); see also Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). This responsibility is particularly important where medical opinions diverge. The Board is also mindful that it cannot make its own independent medical determinations, and that there must be plausible reasons for favoring one medical opinion over another. See Evans at 31; see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. On the Veteran's Report of Medical History in 1996 and again in November 1998 just prior to his 1999 discharge, he complained of various problems, such as headaches, long-standing back and knee pain, and continued pain in his ankle. The STRs do not show complaints, findings or diagnosis of any jaw-related injury or pain. Regarding the jaw, the Veteran testified at his April 2009 Board hearing that for a couple of years, he could not bite into something like an apple without his jaw locking. He described situations when he could not close his jaw and his entire neck, collarbone and jaw were affected. The Veteran testified that, in essence, he jammed his collarbone and jaw on the steering wheel during a car accident. To address the claim of service connection for a jaw injury, the Veteran was afforded a VA dental examination in May 2014. The examiner reviewed the claims file and noted that the Veteran's STRs were negative for any kind of dental incident or accident or other significant dental history, including the Veteran's claimed Humvee accident in 1992-1993. The Veteran reported pain and sensitivity when he opens his mouth wide. The examiner opined that the Veteran's claimed TMJ was less likely than not due to or aggravated by the claimed accident. No rationale was provided. Another VA clinician reviewed the file in August 2014 and opined that the Veteran's jaw complaints are less likely than not related to service. The examiner reasoned that the STRs are negative for complaints or findings relative to any jaw disability or jaw injury. The Veteran did not report jaw pain at the time of service separation, and the Veteran's examination in May 2014 was negative for TMJ on palpation. Palpation of the external pterygoid muscle was negative and palpation of the sternocleidomastoid muscle was also negative. There was no deviation of the mandible and the Veteran's occlusion was good. The Veteran reported pain and sensitivity when he opens his mouth wide, and stated there is clicking occasionally. Despite these complaints, the examiner could not find any objective evidence of a TMJ disability. Moreover, the examiner could not link the Veteran's claimed jaw pain to service because the record does not show that the present complaints of pain and sensitivity are related to service. While the Veteran is competent to report that he has had pain and sensitivity in his jaw when he opens wide since service, this statement is inconsistent with his November 1998 Report of Medical History which does not show that the Veteran had jaw pain in service or at the time of his service discharge. The Board finds more probative the medical evidence of record which indicates that the Veteran does not have TMJ or other residual of an in-service injury. Moreover, the Veteran's argument of continuity of symptoms since service fails here as there was no jaw pain noted in service and the Veteran does not have a diagnosis of a chronic disability listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed.Cir. 2013). In this case, there is no medical evidence establishing a current jaw disorder for which service connection may be established. Thus, the preponderance of the evidence is against a finding service connection and the claim must be denied. It is well-established that a symptom such as pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted, unless there is a medical nexus linking the veteran's pain to an incident in service. See Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). Specifically, such a "pain alone" claimed must fail when there is no sufficient factual showing that the pain derived from an in-service disease or injury. Such pain cannot be compensable in the absence of proof of an in-service disease or injury to which the current pain can be connected by medical evidence. The Veteran is not shown to have an actual jaw problem other than his subjective complaints of pain and sensitivity when he opens wide with occasional clicking. Absent evidence of an actual jaw condition that is etiologically related to an injury or disease in service, the Veteran's claim of service connection for a jaw disorder is not supported by the evidence. A claim for service connection requires competent evidence showing that the veteran currently has the claimed disability. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) [service connection may not be granted unless a current disability exists]. As the Veteran has not been shown to be competent to diagnose a jaw disability, the only competent evidence is that provided by the examiner who examined the Veteran and determined that he does not have a jaw disorder. Accordingly, the preponderance of the evidence is against the claim and service connection must be denied. ORDER Service connection for claimed residuals of a jaw injury is denied. REMAND The Board remanded the claim for service connection for chest pains in February 2014 and requested that a VA examination be conducted to determine if the Veteran has a current disability manifested by chest pains that is separate and apart from the service-connected residuals of a rib fracture or whether the chest pain is part and parcel of the service-connected residuals of a rib fracture. A VA examination was conducted in August 2014. The examiner concluded that the Veteran still had tenderness of the left ribs/intercostal muscles and it was at least as likely as not that the left rib/muscle group XXI condition is related to the left rib fracture notes in service. A rating decision was issued in October 2014 which specifically noted that symptoms of chest pain were incorporated into the service-connected muscle group XXI injury. Although the rating decision indicated that this constituted a full grant of the issue on appeal, the representative provided written argument in March 2015 in which it was asserted that even though the Veteran was service-connected for the muscle group XXI injury, "the veteran probably portends other disability associated other than the grant of service connection cited." In light of the representative's argument and as a supplemental statement of the case was not issued concerning this issue, remand is required. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide or identify any medical evidence not already of record pertaining to whether he has a disability manifested by chest pains other than the service-connected muscle group XXI injury. 2. Take any additional development action that is deemed warranted and then readjudicate the claim. If the claim remains denied, issue a supplemental statement of the case to the Veteran and his representative and provide an appropriate period of time for a response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2013). ______________________________________________ S. S. Toth Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs