Citation Nr: 1805778 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 14-00 492 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for cherubism with secondary problems of the jaw. 2. Entitlement to service connection for left knee degenerative changes (claimed as left knee condition). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Stevens, Associate Counsel INTRODUCTION The Veteran served on active duty in the Air Force from June 2002 to May 2003. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the benefits being sought. Jurisdiction currently lies with the Atlanta, Georgia RO. The Veteran was scheduled for a videoconference hearing before a member of the Board in February 2017, but he requested a postponement since he had just relocated from Tampa, Florida to Atlanta, Georgia. In July 2017, he was notified that he was scheduled for an August 2017 videoconference Board hearing. The Veteran was provided proper notice to his current address of record. The notice informed him that BVA would consider his hearing request withdrawn and not grant another hearing request for the same appeal if he failed to report. The Veteran did not report for the August 2017 hearing, and neither he nor his representative has provided a written motion showing good cause for his failure to report. Therefore, the Board will proceed to a decision. 38 C.F.R. § 20.704 (d) (2017). In December 2017, the Veteran's representative stated that he had a pending hearing request, but did not provide any information as to why the Veteran failed to report for his scheduled August 2017 hearing. Action to schedule a new hearing is not required. FINDINGS OF FACT 1. The preponderance of the evidence of record shows that the Veteran's cherubism with secondary problems of the jaw was not caused or aggravated by any incident in service or manifested within a compensable degree within one year of leaving service. 2. The preponderance of the evidence of record shows that the Veteran's left knee degenerative changes were not caused or aggravated by any incident in service. CONCLUSIONS OF LAW 1. The criteria for service connection for cherubism have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for service connection for left knee degenerative changes have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service connection may be granted for a 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 (2017). If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303 (a), (b), 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also 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) (2017). Service connection for certain chronic disabilities, including arthritis, may be presumed to have been incurred in service if shown to a compensable degree within one year following separation from qualifying service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309 (2017). In order to establish service connection for the claimed disorder, there must be (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, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (2017); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102 (2017). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). A. Cherubism with Secondary Problems of the Jaw The Veteran contends that his cherubism with secondary problems of the jaw was incurred in service and has continued since. The Veteran's service treatment records (STRs) dated in July 2002, indicate that a consultation reported a dental cyst of the posterior third molar. Notes dated later in July indicate that there were significant dental problems noted on a radiograph. Notes dated in August 2002, indicate that the Veteran had four teeth extracted, and tissue samples were biopsied. Later that month, biopsy findings confirmed a diagnosis of cherubism. The physician noted that the histopathologic features were suggestive of cherubism, especially with the presence of bilateral lesions in the mandibular rami, but suggested further clinical evaluation. Notes dated November 2002 indicate that the Veteran reported for a follow-up for cherubism. The physician noted no complaint, and the Veteran indicated that he "feels well." The physician noted that the gum was well-healed and was healing as expected. He recommended that the Veteran undergo annual dental visits for the next three to five years, to assess further resolution of the initial lesion. Notes dated in December 2002 indicate that the Veteran underwent a periodic dental examination. There was no complaint of pain. The Veteran was given tobacco counseling and demonstration on brushing, on flossing and the importance thereof. A Report of Medical Assessment dated in April 2003, indicates that the Veteran was taking Vicodin and he did not "have any dental problems." Post-service treatment records are silent for diagnosis or treatment of a jaw problem or residuals or complications from cherubism. Treatment records dated in August 2004 shows a visit for strep throat. The attending physician noted that the Veteran smoked 1/2 pack of cigarettes per day. Additionally, the physician noted that the Veteran presented with a severe sore throat but no toothache, swollen jaw, or jaw pain. The clinical impression was pharyngitis. Private treatment notes dated in October 2011 indicate that the Veteran was diagnosed with a dental abscess. The discharge instructions noted that the Veteran might experience fever and a swollen jaw. Additionally, the Veteran was informed that damage to the tooth, untreated tooth decay or gum disease could cause an abscessed tooth. The Veteran was afforded a VA dental and oral examination in July 2011. The examiner noted that the Veteran brought a copy of his service treatment records with him and left it for the examiner's review. The Veteran denied any supernumerary teeth and/or displacement of teeth from radiolucent lesions in the past. The Veteran also denied any deformities of the face or jaw from lesions of the past. Upon examination, the examiner noted no loss of bone or malunion or nonunion of the maxilla or hard palate. There was no malunion or nonunion of the mandible or loss of bone of the hard palate. No speech difficulty was reported. The examiner also noted that the Veteran had very poor oral hygiene and many carious teeth. The examiner noted that the #2 tooth had nonrestorative decay and large carious lesions. The examiner noted that the X-ray findings revealed "rampant decay throughout the [Veteran's] mouth." The examiner concluded that the Veteran had no residuals apparent from previous the history of cherubism. Further, he reported that the Veteran's intermittent jaw swelling was not a result of his previously diagnosed cherubism. The examiner explained that the Veteran's service treatment records were reviewed and although there was a mention of a diagnosis of cherubism, by the [Veteran's] own admission, he did not suffer from any of the common side effects of the disorder such as displaced teeth, round face, full cheeks or upturned eyes. The Veteran indicated that he has had intermittent swelling for many months on the upper right side [of his mouth,] problems eating, chewing, locking, cracking, jaw ache, and [inability to] open his mouth, trouble talking because of speech impediment and feels that all this is a result of his history of cherubism. Clinical examination, [however,] reveals very poor oral hygiene and decay on most teeth. Tooth #2 on the upper right side has non-restorable decay and appears to have a chronic abscess, which is the cause of the Veteran's swelling, not cherubism. The Board finds this July 2011 VA opinion most probative against a finding that the Veteran's problems of the jaw, including swelling, are from cherubism. The Board has considered the Veteran's assertions. The Veteran is competent to report observable symptoms such as jaw pain, locking, swelling, and problems with eating and chewing. Layno v. Brown, 6 Vet. App. 465 (1994). He is also competent to report recurrent symptoms. However, because there is no universal rule as to competence on this issue, the Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. Jandreau v. Nicholson, 492 F.3d 1372, 1376 -77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428, 433 n.4 (2011). The specific issue in this case, whether the problems of his jaw are caused by his cherubism diagnosed during his period of active service falls outside the realm of the Veteran in this case. Jandreau, 492 F .3d at 1377 n.4. Determining the etiology of the Veteran's the swelling of his jaw requires medical inquiry into biological processes and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have medical training or skills. Additionally, his assertion has been investigated by a competent medical practitioner who determined that the Veteran's dental problems are due to poor oral hygiene, non-restorable decay and a chronic abscess of tooth #2, upper right. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the probative value of the Veteran's lay opinion is low. To the extent that he asserts continuity of symptomology, the Veteran was released from active duty in May 2003, and his report of Medical Assessment indicated that he did not have any dental problems. Moreover, the post-service treatment records are absent of complaints or treatment for cherubism with a secondary problem with the jaw. Treatment records dated in August 2004 shows a visit for strep throat, but the Veteran did not complain of a toothache, swollen jaw or jaw pain. Private treatment notes dated in October 2011, eight years after the Veteran's active service ended, shows a diagnosis of a dental abscess, which the Veteran was informed could result in a swollen jaw. As a result of the previously mentioned factors, the Veteran's opinion is not probative The findings of the July 2011 VA examiner are more probative than the lay evidence. Therefore, the preponderance of the evidence is against a finding that the Veteran's problems of the jaw were incurred in or a result of service. 38 C.F.R. § 3.102. The benefit of the doubt rule is not applicable. 38 U.S.C.A § 5107 (b); Gilbert, 1 Vet. App. at 55-57 (1990). Service connection for cherubism with secondary problems of the jaw is denied. B. Left Knee Condition The Veteran contends that his left knee degenerative changes (claimed as left knee condition) was incurred in service and he has continued to endure pain since. STRs dated in April 2003 indicate that the Veteran was seen for complaints of left knee pain. The Veteran indicated that he had left knee pain after bowling and it hurt to walk. He denied trauma to the knee. The Veteran was diagnosed with internal derangement of the left knee and prescribed Vicodin. He was also given a knee immobilizer and crutches. A Report of Medical Assessment dated in April 2003, indicates that the health care provider noted in the comment section that the Veteran had "no complaints other than left knee pain." The Veteran was ordered to ice and elevate the left knee and an MCL strain was noted. Post-service treatment records are silent for diagnosis or treatment for a left knee condition. The Veteran was afforded a VA examination in August 2011. Osteoarthritis was diagnosed. The examiner concluded that it was less likely as not that the Veteran's current left knee disabilities are the same as or are a result of hospital ER visit shown during active duty. The examiner explained that the claims file showed treatment for left knee strain in April 2003 and but that a left knee X-ray in May 2003 was normal. Additionally, the examiner noted that: there [was] no available document supporting a left knee problem since 2003, until 2011. Currently, [the] left knee, per X-ray examination shows mild narrowing medial joint space, indicating an early joint degenerative change. Degenerative joint disease or osteoarthritis (OA) is the most common form of arthritis [and] occurs when cartilage in the joints wears down over time. Osteoarthritis can affect any joint in the body though it most commonly affects joints in the hands, hips, knees, and spine. Degenerative joint disease gradually worsens with time, and no cure exists. Medical literature supports that being overweight increases the load placed on the weight-bearing joints such as the knee and the hip, which increases stress and could possibly hasten the breakdown of cartilage and ultimately increase the risk for developing osteoarthritis especially knee osteoarthritis. The Board finds this August 2011 VA opinion most probative against a finding that the Veteran's left knee condition was caused by service or any incident therein. The Board has considered the Veteran's lay assertions. The Veteran is competent to report observable symptoms such as cracking knees and upon walking. Layno, 6 Vet. App. 465. He is also competent to report recurrent symptoms. The specific issue in this case, the etiology of the Veteran's left knee arthritis, falls outside the realm of common knowledge the Veteran in this case. Jandreau, 492 F .3d at 1377 n.4. Determining the etiology of the Veteran's current left degenerative changes require medical inquiry into biological processes and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have medical training or skills. Additionally, his assertion has been investigated by a competent medical practitioner who noted that medical literature supports weight gain as a contributing factor to the breaking down of the cartilage and increasing the load placed on weight-bearing joints, such as the knees and hips causing, thus causing degenerative changes. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the probative value of the Veteran's lay opinion is low. The Veteran is not afforded the presumptive service connection, in this case. The probative evidence of record does not show that the Veteran's left knee degenerative condition manifested within one year of separation from active duty. In actuality, it was during the August 2011 VA examination, eight years after service, which the Veteran was diagnosed. Therefore, the presumption is not warranted. To the extent that he asserts continuity of symptomology, the Veteran was released from active duty in May 2003, and the August 2011 examiner noted that the cfile showed treatment for left knee strain in April 2003, but X-ray findings in May 2003 showed a normal left knee. Moreover, the post-service treatment records are absent of complaints, treatment or diagnosis of a left knee condition until the August 2011 VA examination, eight years after the Veteran's active service ended. As a result of the foregoing, the Veteran's opinion is not probative. Further, his assertions were investigated by a competent medical professional, who determined that his left knee condition was not due to service, but rather, weight gain. Although not dispositive, a lengthy period without complaint or treatment is considered evidence that there has not been a continuity of symptomatology and weighs heavily against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The findings of the August 2011 VA examiner are more probative than the lay evidence. Therefore, the preponderance of the evidence is against a finding that the Veteran's left knee condition was incurred in or a result of service. 38 C.F.R. § 3.102, 3.303. The benefit of the doubt rule is not applicable. 38 U.S.C.A § 5107 (b); Gilbert, 1 Vet. App. at 55-57 (1990). Service connection for a left knee condition is denied. ORDER Service connection for cherubism with secondary problems of the jaw is denied. Service connection for left knee degenerative changes is denied. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs