Citation Nr: 1754478 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 14-13 774 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea (OSA). 2. Whether new and material evidence has been received to reopen a claim for service connection for residuals of jaw reconstruction, to include temporomandibular joint dysfunction (TMJD). 3. Entitlement to service connection for residuals of jaw reconstruction, to include temporomandibular joint dysfunction (TMJD). REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD B. J. Komins, Associate Counsel INTRODUCTION The Veteran had active service in the United States Navy from December 1982 to December 2003. The matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2012 rating decision of the Department of Veterans Affair (VA) Regional Office (RO) in Roanoke, Virginia that denied service connection for OSA and that declined to reopen a claim for service connection for residuals of jaw reconstruction, to include temporomandibular joint dysfunction (TMJD). In a February 2014 statement of the case, the RO reopened the claim for residuals of jaw reconstruction but denied service connection on the merits. Regardless of the RO's actions, the Board has a legal duty under 38 U.S.C. §§ 5108, 7104 (2012) to address the question of whether new and material evidence was necessary, and if so, has been received to reopen the claim for service connection for residuals of jaw reconstruction, as that matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In April 2017, the Veteran and his spouse testified at a hearing in Washington, D.C. before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In July 2012, the RO denied service connection for restless leg syndrome. However, during the April 2017 Board hearing transcript and in records of private medical care submitted by the Veteran in May 2017, the Veteran raised the issue of reopening a claim for service connection for restless leg syndrome. During the Board hearing, the Veteran also raised the issue of eligibility for dental treatment. These issues have not been adjudicated formally by the Agencies of Original Jurisdiction (AOJ) (VBA and VHA). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJs for appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDINGS OF FACT 1. Obstructive sleep apnea was manifest during service. 2. In January 2008, the RO denied service connection for residuals of jaw reconstruction; the Veteran did not express timely disagreement or submit new evidence within one year. 3. Since January 2008, evidence has been received that is new, not cumulative, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for residuals of jaw reconstruction. 4. Residuals of jaw reconstruction, to include temporomandibular joint dysfunction, were manifest during service. CONCLUSIONS OF LAW 1. Obstructive sleep apnea was incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. A January 2008 rating decision that denied service connection for residuals of jaw reconstruction is final. 38 U.S.C. § 7105 (2002); 38 C.F.R. §§ 3.104, 3.302, 20.1103 (2007). 3. As new and material evidence has been received, the claim for service connection for residuals of jaw reconstruction including TMJD is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 4. Residuals of jaw reconstruction, to include temporomandibular joint dysfunction, were incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Recharacterization of Issue The Board recharacterized the issue of entitlement to service connection for residuals of jaw surgery as entitlement to residuals of jaw surgery, to include TMJD. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Thus, even though the AOJ adjudicated the issue as residuals of jaw disease, the Board finds that the symptoms articulated by the Veteran in the evidence of record supports the inclusion of temporomandibular joint dysfunction. II. Reopening Claims VA may reopen and review a claim that has been previously denied if new and material evidence is submitted. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence is existing evidence not previously submitted to agency decision makers. Material evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In evaluating an application to reopen a claim for service connection, the Board examines the evidence submitted since the last final disallowance of the claim. Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of the new and material evidence analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In January 2008, the RO denied service connection for residuals of jaw reconstruction because there was no evidence of a current residual disability; the Veteran did not express timely disagreement or submit new evidence within one year. Since January 2008, evidence has been received that indicates that the Veteran experiences TMJD and suggests that it is a residual of jaw reconstruction surgery that occurred in service. As this evidence is new, not cumulative, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for residuals of jaw reconstruction, the Board concurs with the RO and the claim for service connection for residuals of jaw reconstruction surgery is reopened. III. Service Connection Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2017). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Under 38 U.S.C.A. § 1154(b), the evidentiary burden for combat veterans with respect to evidence of in-service incurrence or aggravation of an injury or disease is reduced. See Collette v. Brown, 82 F.3d 389, 392 (Fed.Cir.1996). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 3 8 C.F.R. § 3.159 (a) (2017); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Obstructive Sleep Apnea The Veteran served in the United States Navy as a fighter and attack aircraft maintenance technician and retired at the rank of Petty Officer First Class. He contends that his OSA began during his active duty service. While the Veteran's service treatment records and separation examination are silent as to a diagnosis of OSA, the lay evidence indicates that the Veteran exhibited symptoms indicative of OSA as early as 1991. At the April 2017 hearing, the Veteran's Spouse testified that the Veteran's "loud snoring" was evident from the time that they were married in 1991, that is 9 years into the Veteran's 20 year active duty service. In 2006, according to the Veteran's spouse, the Veteran snored loudly and she observed that he was not breathing. She was awake at the time because she was recovering from surgery. See Central Office hearing transcript, pp. 16-17. The RO made a formal finding in October 2011 as to the unavailability of a portion of the Veteran's service and post-service treatment records from January 2002 to December 2007. The RO indicated that all efforts to obtain records from the medical facility and from the Veteran from Portsmouth Naval Medical Center had been exhausted. In February 2006, the Veteran underwent a polysomnogram under the care of Dr. R., a private physician. Dr. R. diagnosed OSA, associated with an abnormal sleep architecture due to a decreased percentage of rapid eye movement (REM)) sleep. He further took note of the Veteran's disrupted sleep to a high number of arousals, including periodic leg movement. In April 2006, the Veteran underwent a continuous positive airways pressure (C-PAP) titration study under the care of Dr. R. This study confirmed Dr. R's impression of OSA. Dr. R. prescribed a C-PAP at 9.0 cm of pressure with a 20 minute ramp, heated humidification, and a small vent cannula system. A review of the July 7, 2007 to November 2012 VA treatment records reveals that the Veteran complained of OSA symptoms and sought consultation as to his C-PAP use. Throughout this period, there are multiple notations as to the Veteran having been diagnosed with OSA. In January 2011, Dr. R. submitted a follow-up report concerning the status of the Veteran's OSA and another medical issue which is not before the Board. As to the OSA, Dr. R. provided that there had been no change is either evaluation of systems or physical examination since the Veteran's last visit. In April 2011, Dr. R. submitted a report that largely mirrored his findings in January 2011. In March 2011, the Veteran's spouse submitted a statement, via VA FORM 21-4138. In pertinent part, she wrote that the Veteran had snored loudly prior to his retirement from active duty in 2003. She also noted that the Veteran was prone to daytime "dozing off," prior to the February 2006 polysomnogram. Dr. R. also submitted a letter in April 2011. He wrote that the Veteran's OSA is appropriately treated with C-PAP; however, his sleep remained unsatisfactory. Dr. R. commented on RLS, of which as stated above, the Board does not have jurisdication at this time. Moreover, Dr. R. wrote that OSA is a slowly progressing disease. In light of this and the Veteran's complaints of unsatisfactory sleep for many years (as well as other medical issues), he could state "with a high degree of certainty" that the Veteran suffered from OSA before he retired from active duty in 2003. In April 2012, the Veteran was afforded a VA contract examination focused on OSA. The examiner reviewed the claims file. The examiner opined that the Veteran's OSA was less likely than not incurred in or caused by an in-service injury, event, or illness. As a rationale for this finding, the examiner provided that there is no medical evidence of record to associate OSA with active duty. The examiner did not address or consider the Veteran's lay account of the onset of OSA, address the private medical evidence, or conduct a physical examination of the Veteran. At the April 2016 hearing, the Veteran testified that "from the middle of his career," he suffered from daytime sleepiness, an inability to state awake while sitting for a long period of time, lack of alertness, and "just dozing off when sitting stagnant." See Central Office hearing transcript, p. 15. At the conclusion of the hearing, the undersigned Veterans Law Judge left the record open for an additional 60 days so that the Veteran could obtain additional information from Dr. R. The day after the April 2017 hearing, the Veteran submitted a copy of a scholarly article from the Pulmonary and Rehabilitation Research Group in Liverpool, U.K. See Obstructive sleep apnoea: a progressive disorder? (THORAX 52 1997; 843-44). The article provided a survey of the present research on sleep apnea, underscoring the fact that "to date, almost all objective studies of the natural history of snoring/OSA have been retrospective in nature." Id. In May 2017, Dr. R. submitted a letter in which he reiterated with "a high degree of certainty," that the Veteran's OSA began when he was on active duty. The Board finds that the Veteran has OSA and that it first manifested in active service. The Veteran reported that during service he suffered from daytime sleepiness, an inability to stay awake while sitting for a long period of time, lack of alertness, and dozing off. The Board finds the Veteran's statements and testimony to be consistent and credible. Furthermore, the Veteran's wife testified that the Veteran snored excessively from 1991 and eventually started not to breathe. OSA was eventually diagnosed. We recognize that obstructive sleep apnea was not diagnosed during service. However, the Board finds the Veteran's in-service reports wholly credible. In addition, we find the Veteran's wife testimony reflecting that the Veteran had breathing issues to be credible. Moreover, Dr. R. repeatedly opined "with a high of certainty" that obstructive sleep apnea began during active service. Although the VA examiner disagreed, the Board finds that there is at least an equal balance of competent, credible, and probative evidence for and against the onset of OSA in service. The Board finds that there is doubt as to the onset of obstructive sleep apnea and such doubt is resolved in favor of the Veteran. Residuals of Jaw Reconstruction, to include TMJD The Veteran contends that his residuals of jaw reconstruction, including TMJD were incurred in service. Review of the Veteran's dental service treatment records shows that he received extensive jaw treatment during his 20 years of active service. He was diagnosed with a malocclusion, skeletal deformity in December 1987. As a result, he underwent a bilateral mandibular sagittal slit osteotomy with mandibular setback, inter-maxillary fixation, and a rigid fixation for dento-facial deformity in March 1992. In April 1992, he underwent removal of the maxillary occlusal splint and manipulation of the mandible for the retained maxillary splint with his dysfunctional left temporomandibular joint. The Veteran complained that his temporomandibular joints periodically "locked" in January 1999 and he was further treated for jaw pain in December 1999. In February 2000, the Veteran reported temporomandibular pain and locking. In January 2002, the Veteran received treatment for swelling in the left mandible; in June 2002, he received treatment for temporomandibular joint pain. And, in September 2003, the Veteran reported that his upper teeth were being "pushed" by his lower teeth. In April 2004, Dr. D., the Veteran's private dentist, submitted a statement in which he reported that the Veteran needs a bridge to replace missing teeth 12 and 20. Dr. D. noted that these teeth were lost prior to 2004. Moreover, Dr. D. opined that the teeth should be replaced to help reduce drifting of the Veteran's posterior teeth as well as help restore to a more balanced occlusion, ultimately reducing wear on his posterior teeth. In April 2012, the Veteran was afforded a VA contract temporomandibular examination. The examiner reviewed the Veteran's claims file. He opined that it is less likely as not that the Veteran's "jaw condition" was incurred in or caused by in-service injury, event, or illness. As a rationale, the examiner reported that the Veteran had a jaw condition since childhood. Moreover, naval dentists tried to correct the malocclusion problem in 1992. And, the Veteran was scheduled to undergo a surgical procedure on the upper jaw to correct it; however, this scheduled corrective procedure never took place as time ran out. At the April 2017 hearing, the Veteran testified that his under-bite had been corrected when naval dentists removed millimeters of bone structure from the lower jaw and adjusted it rear-wise. As a result of this procedure, the bottom jaw now "impacts" the top jaw, causing misalignment and damage to the upper teeth. See hearing transcript, p. 14. Moreover, the Veteran's representative stated that the Veteran's post-operative jaw surgery notes showed that the oral surgeon was not satisfied with the outcome of the procedure because (apparently) the left joint did not align properly. Responsive to this statement, the Veteran testified that post-operatively his jaw would not open as wide as it had before the procedure; it would lock and TMJ started after the botched operation. And, as noted by the April 2012 VA contract examiner, time in service had expired, so no correction was performed. Id. at pp. 8-9. As noted above, the undersigned Veterans Law Judge left the record open at the conclusion of the hearing. In this instance, to receive a dental plan from the Veteran's dentist. In May 2017, Dr. D. submitted a letter. Dr. D. repeated his earlier contentions. Here, he also opined that fracturing of anterior teeth and reabsorption of a pre-molar had already occurred. He attributed these losses to the currently missing teeth combined with the (mis)alignment of his mandible. Dr. D. recommended a course of treatment including extractions, implants, and in-filling. Also in May 2017, Dr. G., a private oral surgeon, submitted a letter. He wrote that the Veteran sought consultation for future orthognathic surgery and dental implants. Dr. G. noted that the Veteran was self-referred to determine what additional treatment is required to complete treatment which began in 1992, when the Veteran was in active service. Upon examination, Dr. G. reported that the Veteran has a moderate dento-facial deformity resulting from maxillary hypoplasia and mandibular hyperplasia. The Veteran would need orthognathic surgery to consist of a Lefort 1 Osteotomy and Bilateral Sagittal Split Mandibular Osteotomy with possible bone grafting to correct dento-facial deformity for optimal occlusion. Dr. G. also provided a detailed plan as to the costs involved in these procedures. The Board finds that the Veteran's residuals of jaw reconstruction, to include temporomandibular joint dysfunction, were incurred in service. Although the original deformity may have been congenital, the Veteran underwent significant jaw reconstructive work in service to rectify malocclusion and temporomandibular joint dysfunction. The dental evidence of record underscores unambiguously that the scheduled maxillofacial procedures were never completed while the Veteran was in active service. There is no dispute as to fact that the scheduled corrective jaw procedure did not take place because the Veteran went on to sea duty and ran out of in-service time. Furthermore, the Veteran's representative stated that the Veteran's post-operative jaw surgery notes showed that the oral surgeon was not satisfied with the outcome of the procedure because (apparently) the left joint did not align properly. We recognize that the Veteran's current residuals of jaw reconstruction, including temporomandibular joint dysfunction, were not diagnosed during service. However, there is sufficient evidence to show that the Veteran's surgery was performed in service with residual joint dysfunction. Here, the Board finds that the Veteran's testimony as to the events surrounding his incomplete jaw surgeries credible. The Veteran had residuals of jaw reconstruction, including temporomandibular joint dysfunction, prior to Dr. D.'s April 2004 statement. The Board finds there is doubt as to the inception of residuals of jaw reconstruction, including temporomandibular joint dysfunction, and such doubt is resolved in favor of the Veteran. ORDER Service connection for obstructive sleep apnea is granted. As new and material evidence has been received, a claim for service connection for residuals of jaw reconstruction is reopened. Service connection for residuals of jaw reconstruction, to include temporomandibular joint dysfunction, is granted. ____________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs