Citation Nr: 1616421 Decision Date: 04/26/16 Archive Date: 05/04/16 DOCKET NO. 10-42 204 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for temporomandibular joint (TMJ) disorder, status post osteotomy with maxillary advancement. 2. Entitlement to service connection for a nasal disorder. 3. Entitlement to service connection for a left knee disorder. 4. Entitlement to service connection for a right knee disorder. 5. Entitlement to service connection for a right wrist disorder. 6. Entitlement to service connection for a cervical spine disorder. 7. Entitlement to service connection for a lumbar spine disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Casadei, Counsel INTRODUCTION The Veteran served on active duty from April 1974 to March 1978, and from August 1979 to August 1995. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. Jurisdiction resides with the Boston, Massachusetts RO. In an October 2010 substantive appeal, the Veteran indicated that he desired a hearing before a member of the Board at the RO in conjunction with his appeal. A hearing was scheduled in December 2015. The Veteran did not appear for the hearing and no good cause has been presented for not appearing. Therefore, the Veteran's request for a hearing is deemed withdrawn. 38 C.F.R. § 20.704 (2015). This appeal was processed using the Veterans Benefits Management System (VBMS). In evaluating this case, the Board has also reviewed the "Virtual VA" system to ensure a complete assessment of the evidence. The issues of (1) service connection for a cervical spine disorder; (2) service connection for a lumbar spine disorder; (3) service connection for a right knee disorder; and (4) service connection for a left knee disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran does not have a current disability to include a TMJ disorder related to retrognathic maxilla (underbite) and osteotomy with maxillary advancement procedure in service. 2. The Veteran sustained a nasal injury in service. 3. The Veteran does not have residual symptoms associated with the in-service nasal injury and does not have a current nasal disability. 4. The Veteran does not have a currently diagnosed right wrist disability. CONCLUSIONS OF LAW 1. The criteria for service connection for TMJ status post osteotomy with maxillary advancement have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). 2. The criteria for service connection for a nasal disorder have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). 3. The criteria for service connection for a right wrist disorder have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2015). As to the claims addressed on the merits herein, VA has duties to notify and assist claimants in substantiating a claim for VA benefits pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). A VA letter issued in March 2009 satisfied the duty to notify provisions with respect to service connection and notified the Veteran of the regulations pertinent to the establishment of an effective date and disability rating. The Board concludes that VA's duty to assist has also been satisfied in this case. The RO has obtained the Veteran's service treatment records, post-service VA treatment records, and his lay statements. The Board acknowledges that the Veteran has not been afforded VA examinations regarding his claims for service connection for his TMJ, nose, and right wrist disorders. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in initial service connection claims, the VA must provide a VA medical examination where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. As will be discussed below, the Board finds that the Veteran does not have currently diagnosed disabilities either during or prior to the pendency of the claims relating to the abovementioned disorders. In this regard, the Board finds that the Veteran has submitted no evidence other than his own statements showing current diagnoses for these claimed disorders. Therefore, as there is no evidence of current diagnosis or persistent or recurrent symptoms of the claimed disability, the Board finds that an examination and opinion are not warranted. See 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4); McLendon, supra. Accordingly, the Board finds that no further development of the Veteran's claims is required as there is no evidence indicating that the Veteran currently has any such disorders. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The condition of TMJ is not a "chronic disease" listed under 38 C.F.R. § 3.309(a) (2015); therefore, the presumptive service connection provision of 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). 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 a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection Analysis for TMJ Service treatment records show that in July 1986 the Veteran was diagnosed with retrognathic maxilla (underbite). It was noted that the Veteran had been aware of his underbite since the age of 17 following an auto accident. The in-service medical report indicated that the condition was "probably developmental" as it had also occurred in the Veteran's 23-year old brother. Since entering service, the Veteran reported that he desired surgical correction and had been "virtually asymptotic," but occasionally would experience stiffness and clicking in the right and left TMJ. A maxillary osteotomy with maxillary advancement was performed. Follow-up treatment notes showed that the Veteran was stable and was placed on 30 day convalescence. The remaining service treatment notes of record do not show any further complaints, treatment, or diagnoses relating to the Veteran's jaw. Moreover, in an April 1995 report of medical examination, conducted at service separation, a clinical evaluation of the Veteran's mouth was normal. In a May 1995 report of medical history, completed by the Veteran at service separation, the Veteran specifically checked "NO" as to having severe tooth or gum trouble. Post-service treatment records are absent for any complaints, treatment, or diagnoses of a TMJ disorder or related symptoms. Although the Veteran was diagnosed retrognathic maxilla (underbite) in service and underwent an osteotomy with maxillary advancement procedure, the evidence does not support a current diagnosis of residual symptoms of TMJ after the maxillary osteotomy with maxillary advancement procedure. As such, the Board finds that the Veteran does not have a current disability of the jaw. As noted above, in the absence of proof of a present disability there can be no valid claim." Brammer, 3 Vet. App. 225; see also Rabideau, 2 Vet. App. 143-44. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for TMJ disorder status post osteotomy with maxillary advancement, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Service Connection Analysis for a Nasal Disorder Service treatment records show that, in December 1976, the Veteran was diagnosed with a non-displaced fracture of the nasal bone after being involved in a fist fight. In a July 1986 service treatment record it was noted that the Veteran underwent an operation for a septal deviation in 1983. The remaining service treatment records are absent for any further complaints, diagnoses, or treatment relating to a nose disorder. Further, in an April 1995 report of medical examination, conducted at service separation, a clinical evaluation of the Veteran's nose was normal. In a May 1995 report of medical history, completed by the Veteran at service separation, the Veteran specifically checked "NO" as to having nose trouble. Post-service treatment records are absent for any complaints, treatment, or diagnoses of a nose disorder or any residual symptoms associated with the Veteran's in-service nose injury. Although the Veteran sustained an injury to his nose during service and underwent an operation for a septal deviation, he did not have any further residuals. The pos-service medical evidence does not support a current diagnosis relating to the Veteran's nose. As such, the Board finds that the Veteran does not have a current disability of the nose. As noted above, in the absence of proof of a present disability there can be no valid claim." Brammer, 3 Vet. App. 225; see also Rabideau, 2 Vet. App. 143-44. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for a nose disorder, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 Service Connection Analysis for a Right Wrist Disorder The Veteran essentially contends that he has a right wrist disorder that is related to service. Service treatment records reflect that in February 1990, the Veteran was seen for left shoulder pain after lifting weights and also complained of weakness in the right hand and wrist. The remaining service treatment notes of record are absent for any other complaints, diagnoses, or treatment for a right wrist disorder. Further, in an April 1995 report of medical examination, conducted at service separation, a clinical evaluation of the Veteran's upper extremities was normal. Post-service treatment records do not reveal any diagnoses of a right wrist disability. Upon review of all the evidence of record, lay and medical, the Board finds that the Veteran was not diagnosed with a right wrist disorder in service and does not have a current diagnosis of right wrist disability since service separation. As such, the Board finds that the Veteran does not have a current disability of the right wrist. As noted above, in the absence of proof of a present disability there can be no valid claim." Brammer, 3 Vet. App. 225; see also Rabideau, 2 Vet. App. 143-44. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for a right wrist disorder, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 ORDER Service connection for TMJ disorder status post osteotomy with maxillary advancement is denied. Service connection for a nose disorder is denied. Service connection for a right wrist disorder is denied. REMAND Lumbar Spine and Cervical Spine Disorders The Veteran essentially contends that he has a lumbar and cervical spine disorder that was incurred in service or is otherwise related to service. In the present case, service treatment records show that, in March 1976, the Veteran was seen for complaints of back pain (pulled muscle). The Veteran reported that he was lifting a crate and felt a sharp pain on the side of his back. A physical examination revealed full range of motion, but with significant discomfort. A diagnosis of muscle strain was indicated. In an April 1977 service treatment record, the Veteran was seen for complaints of lumbar region back pain for one month. During the evaluation, the Veteran reported that he had a previous injury one year prior. The Veteran was diagnosed with a muscle spasm of the right flank lumbar region. He exhibited full range of motion of the lumbar spine. In 1979, the Veteran was seen for tenderness on the right side of the lower back. He was diagnosed with a muscle strain anteriorly. In a June 1991 service treatment record, the Veteran was seen for complaints of right side flank pain after playing basketball. He was diagnosed with a flank muscle strain. Regarding the cervical spine, in a March 1989 service treatment record, the Veteran was seen for neck and shoulder pain after a ski injury where he fell and hit his back and head. A physical examination of the neck showed normal range of motion, no swelling, and no redness. An impression of "muscle spasm vs. pinched nerve" was indicated. In a follow-up March 1989 treatment record, the Veteran stated that he was "much better" especially regarding his neck. Post-service VA treatment records include a problem list dated in January 2011 that notes a diagnosis of "backache." In a June 2007 VA treatment record, the Veteran was seen for increasing lower back pain of the right flank. The evidence also includes an October 2010 statement from Dr. Witt. The statement indicated that the Veteran had been receiving care since 2003 for his spine disorders. Dr. Witt noted that the Veteran had undergone an anterior cervical spine fusion surgery for advanced cervical spine degenerative disease. The Veteran was also noted to have advanced degenerative disease of the lumbar spine. Dr. Witt opined that the Veteran's physical activity as an active duty soldier, including, but not limited to parachuting, accelerated his joint degeneration significantly. The evidence discussed above indicates that the Veteran appears to have a current diagnosis relating to his lumbar and cervical spine disabilities. Moreover, there is evidence of in-service complaints and treatment for the back and neck. The Veteran has not been afforded a VA examination. As such, the Board finds that one is necessary in order to assist in determining the nature and etiology of his lumbar and cervical spine disorders. McClendon, 20 Vet App. 81. Moreover, it does not appear that private treatment records from Dr. Witt (beginning in 2003) have been requested or associated with the claims file. Accordingly, a remand is warranted. Bilateral Knees The Veteran essentially contends that he has a bilateral knee disorder that was incurred in service or is otherwise related to service. Service treatment records indicate that the Veteran was seen in October 1985 for a left knee injury. The Veteran reported that he had injured it a week prior and reinjured it while playing football. A physical examination revealed tenderness to touch of the left knee, redness, swelling, and decreased range of motion. The Veteran was diagnosed with a contusion and mild effusion probably related to an abrasion of the knee. The Veteran was treated with Motrin and instructed not to run for two days. In a June 1988 service treatment record the Veteran was seen for left knee pain and locking. The Veteran reported that he had experienced pain for the last 8 weeks. The Veteran was noted to have retro patellar syndrome. In a July 1988 service treatment record, the Veteran was seen for bilateral knee pain, left greater than right. A physical examination showed no discoloration or deformity or swelling. The Veteran was noted to have crepitus in the left knee. A diagnosis of retro patellar syndrome was again noted. In a March 1991 service treatment record, the Veteran was seen for left knee pain. The Veteran reported that he had injured his knee during a parachute jump. In January 1994, the Veteran was seen for left anterior knee pain mostly behind the patella. The Veteran reported symptoms of pain, clicking, and catching during activity. He also reported that sometimes the pain made walking or running difficult. The in-service physician noted a slightly tight medial retinaculum. In a May 1995 report of medical history, completed by the Veteran at service separation, it was noted that the Veteran had bilateral knee pain with increased activity. The evidence obtained since service separation includes an August 2009 VA psychiatric evaluation. During the physical status portion of the examination, the Veteran reported that he continued to have a "good deal" of pain in his knees. Similarly, in a November 2010 VA ankle examination, the Veteran reported difficulty with running because of his orthopedic conditions, including his knees. The evidence discussed above indicates that the Veteran has reported bilateral knee symptoms, to include pain, after service separation. Moreover, there is evidence of in-service complaints and treatment for the knees. The Veteran has not been afforded a VA examination. As such, the Board finds that one is necessary in order to assist in determining the nature and etiology of his bilateral knee disorder. McClendon, 20 Vet App. 81. Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran to complete and return VA Forms 21-4142, Authorization and Consent to Release Information, for the private medical treatment he received from Dr. Witt for his back and neck disorders. After obtaining the completed VA Forms 21-4142, make reasonable efforts to obtain the private treatment records. Any records so obtained should be associated with the claims folder. 2. Obtain all updated VA treatment records and associate them with the record. 3. Then, schedule the Veteran for a VA spine examination to assist in determining the nature and etiology of the Veteran's lumbar and cervical spine disorders. The examiner must review all pertinent documents in the record, to include a copy of this Remand, and must obtain a complete medical history from the Veteran. Then, the examiner should provide the following: a) List all current diagnoses pertaining to the Veteran's lumbar and cervical spine. (b) Then, for each diagnosis, provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the lumbar and/or cervical disorders had its origin in service or is in any way related to the Veteran's service. The examiner is asked to address the service treatment records discussed in the Remand portion above. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. Schedule the Veteran for a VA knee examination to assist in determining the nature and etiology of the Veteran's bilateral knee disorders. The examiner must review all pertinent documents in the record, to include a copy of this Remand, and must obtain a complete medical history from the Veteran. Then, the examiner should provide the following: a) List all current diagnoses pertaining to the Veteran's knees. (b) Then, for each diagnosis, provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the knee disorders had its origin in service or is in any way related to the Veteran's service. The examiner is asked to address the service treatment records discussed in the Remand portion above. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 5. After completion of the foregoing and all other necessary development, the AMC/RO should re-adjudicate the issues on appeal. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate time period within which to respond thereto. The Veteran has the right to submit additional evidence and argument on the 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 2014). ______________________________________________ K. J. Alibrando Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs