Citation Nr: 1801573 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-17 711 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington THE ISSUES 1. Entitlement to nonservice-connected pension benefits. 2. Entitlement to service connection for temporomandibular joint (TMJ) dysfunction. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran had active duty service in the United States Army from September 1995 to November 1997. This appeal to the Board of Veterans' Appeals (Board) arose from March 2011 and December 2011 rating decisions by the RO. The Veteran filed a notice of disagreement (NOD) in December 2011. A statement of the case (SOC) addressing the issue of entitlement to service connection for TMJ dysfunction was issued in March 2014 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in April 2014. An SOC addressing the issue of entitlement to nonservice-connected pension benefits was issued in January 2015 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) that same month. Additional development was undertaken and a supplemental SOC (SSOC) was issued in July 2015. The issues of entitlement to nonservice-connected pension benefits and to service connection for TMJ dysfunction were then certified for appeal to the Board in August 2015. As discussed in further detail below, after certification of the appeal, the Veteran expressed her desire to withdraw certain claims from appellate consideration. In May 2017, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. During the hearing, the Veteran submitted additional evidence with a waiver of agency of original jurisdiction (AOJ) initial consideration. 38 C.F.R. § 20.1304 (2017). Subsequently, the Veteran submitted additional relevant evidence, which submission was not accompanied by a request for consideration of the evidence in the first instance by the AOJ. Thus, as her VA Form 9 was filed after February 2, 2013, a waiver is not necessary. See The Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, § 501, Pub L. 112-154 , 126 Stat. 1165 (August 6, 2012) (amending 38 U.S.C. § 7105 by adding new paragraph (e) and providing that if new evidence is submitted with or after a Substantive Appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration). While the Veteran previously had a paper claims file, this appeal is now being processed primarily utilizing the Veterans Benefits Management System (VBMS), a paperless, electronic claims processing system. There are additional documents stored electronically in a Virtual VA (Legacy Content Manager) file, consisting of adjudicatory decisions, notification letters, and VA examination reports. All such records have been reviewed. FINDINGS OF FACT 1. In correspondence received on May 17, 2017, the Veteran withdrew the appeal as to the matter of entitlement to nonservice-connected pension benefits; during her Board hearing on the following day, the Veteran confirmed on the record that her appeal had been withdrawn. 2. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 3. Competent, probative evidence demonstrates that the Veteran has a current diagnosis of TMJ dysfunction/lock jaw and tends to establish a link between current symptoms and the Veteran's in-service wisdom teeth extraction surgery. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal as to the claim for nonservice-connected pension benefits are met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. With resolution of all reasonable doubt in the Veteran's favor, the criteria for service connection for TMJ dysfunction are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn by an appellant or by his/her authorized representative as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. Id. On May 17, 2017, the Veteran submitted written correspondence indicating her desire to withdraw her appeal regarding entitlement to nonservice-connected pension benefits. The Veteran appeared before the undersigned Veterans Law Judge for a scheduled hearing on May 18, 2017, and confirmed on the record that her appeal as to that matter had been withdrawn from appellate consideration. Hence, there remain no allegations of errors of fact or law for appellate consideration regarding the matter of the Veteran's entitlement to nonservice-connected pension benefits. See 38 C.F.R. § 20.204. Thus, the Board does not have jurisdiction to review the appeal as to that matter, and it must be dismissed. II. Claim Decided At the outset, the Board notes that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2017). Given the fully favorable resolution discussed below, the Board finds that all necessary actions in connection with the claim for service connection for TMJ dysfunction have been accomplished. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). Service connection is warranted for a disease first 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). Establishing service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether the elements are met is based on an analysis of all pertinent evidence of record and the evaluation of its competency, credibility, and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Here, the Veteran contends that she has TMJ dysfunction/lock jaw that is due to or a consequence of wisdom tooth extraction in service. Specifically, during her 2017 Board hearing, the Veteran reported that while in service, she had her wisdom teeth removed. She stated that shortly after discharge from service, she began experiencing popping and locking of her jaw, which symptoms have continued since. The Veteran acknowledged that she did not report jaw pain at the time of discharge from service, stating that she wasn't aware of any residual disability at that point as she was still healing from her tooth extraction. A review of the Veteran's service treatment records (STR)s reveals that she had two wisdom teeth removed in July 1997 and that she reported pain following the surgery. Post-service medical records also confirm that the Veteran has a current diagnosis of TMJ dysfunction/lock jaw. Accordingly, the dispositive issue is one of nexus. In July 2015, the Veteran was afforded a VA examination. At that time, the Veteran reported removal of several wisdom teeth in service, followed by the onset of TMJ symptoms in 1998. The Veteran reported that her symptoms have continued and increased in severity since that time. Regarding the likelihood that the Veteran's current TMJ dysfunction/lock jaw is caused by or otherwise related to the Veteran's in-service wisdom tooth extraction, the examiner opined that is less likely than not that the Veteran's current condition is attributable to service. As rationale for that opinion, the examiner stated: "Having reviewed medical records and based on current exam, it is my opinion that the [V]eteran's [TMJ] Disorder is less likely than not due to the removal of wisdom teeth. Anything else would be mere speculative." In support of the alleged association between the Veteran's current disability and her in-service wisdom teeth extraction surgery, the Veteran submitted an opinion from J.D., DMD, a private dental specialist who is certified in oral medicine. Dr J.D. stated that the Veteran had presented to his office in June 2017 with complaints of painful right-sided TMJ locking, significant limitations on mouth opening, and ongoing facial pain. She reported that her symptoms of TMJ pain, locking, and popping began shortly after having oral surgery to remove two wisdom teeth in 1997, during which surgery her jaw was propped open uncomfortably wide. The Veteran further reported that since about January 1998, she has experienced varying degrees of TMJ popping and intermittent locking, and that in September 2016, her jaw locked in a way that she was unable to manipulate it open. Dr. J.D. stated that the Veteran's report was consistent with his clinical findings and opined that, based on his examination of the Veteran and taking into consideration her historical report, it was his belief that "the Veteran's ongoing problem with TMJ pain and closed-locking more than likely resulted from the oral surgery procedure back in 1997." In adjudicating a claim for VA benefits, 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 the claim, in which case the claim is denied. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); see Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Here, the Board finds that, with resolution of all reasonable doubt in the Veteran's favor on certain elements of the claim, service connection for TMJ dysfunction is warranted. Notably, with regard to the VA examiner's negative nexus opinion, the Board finds the rationale set forth therein to be lacking. Although the examiner opined in the negative, his statement that to conclude otherwise would be purely speculative raises a question as to what his negative nexus opinion was based upon. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (to be adequate, more than a conclusion needs to be expressed by the examiner that the etiology of a particular condition is not known or is unknowable). Further, it is not clear whether the VA examiner considered the Veteran's lay statements regarding the onset and continuity of TMJ symptoms, as the opinion report contains no specific discussion of this evidence. Id. at 124 (stating that it is incumbent on the VA examiner to consider all of the relevant evidence before forming an opinion). Contrary to the VA examiner, Dr. J.D. opined in favor of an association between the Veteran's current TMJ dysfunction and her in-service dental surgery. To the extent that the private clinician's opinion is lacking in rationale, the Board points out that an examiner is required only to consider all of the relevant evidence before forming an opinion and support his or her opinion with an analysis that the Board can consider and weigh against contrary opinions. Stefl, supra. It is not apparent that Dr. J.D. failed to consider any piece of relevant evidence before providing the favorable opinion and the Board finds no reason to discount the medical opinion based on the clinician's expertise and qualifications as a medical professional. Reading the opinion as a whole and in the context of the evidence of record, the Board finds that it is of sufficient probative weight to warrant a finding that the Veteran's in-service wisdom tooth extraction surgery likely caused or contributed to the development of her TMJ dysfunction/lock jaw. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). At a minimum, the competent opinion evidence on the medical nexus question is relatively evenly balanced. 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. 38 C.F.R. § 3.102. See also 38 U.S.C. § 5107(b); Gilbert, supra. Given the totality of the evidence-discussed above, to particularly include credible lay assertions as to onset and continuity of symptoms, and the probative private medical opinion evidence offered in support of the claim, the Board concludes that the Veteran's TMJ dysfunction was as likely as not incurred in service or caused by the dental surgery therein Accordingly, and with resolution of all reasonable doubt in the Veteran's favor on certain elements of the claim, service connection for TMJ dysfunction is warranted. ORDER Service connection for TMJ dysfunction is granted ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs