Citation Nr: 18145736 Decision Date: 10/30/18 Archive Date: 10/29/18 DOCKET NO. 16-06 823 DATE: October 30, 2018 ORDER Entitlement to service connection for a temporomandibular joint disorder (TMJ) is denied. REMANDED Entitlement to service connection for hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for migraines is remanded. Entitlement to service connection for a back disorder, to include the low back, neck, and/or upper back, is remanded. FINDING OF FACT The Veteran does not have a TMJ disorder that manifested in service or that is otherwise related thereto. CONCLUSION OF LAW A TMJ disorder was not incurred in active service. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from October 1966 to September 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran and his representative submitted several requests to hold the record open for an additional 90 days. The first request was submitted in March 2017, requesting that the record be held open until June 2017. In June 2017, the representative filed another request for an additional 90 days through September 2017. The Board responded to the June 2017 request, granting the extension. The Board finds that a response to the March 2017 request is not warranted, as the June 2017 request negated the March 2017 request. Similarly, the representative submitted another request for an additional 90 days in September 2017 and then filed an additional request in December 2017 asking for another 90-day extension. The Board subsequently responded to the December 2017 extension request. Thus, all requests have been addressed, and the Board may proceed with its decision without prejudice to the Veteran. Neither the Veteran nor his representative has 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). Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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. 38 C.F.R. § 3.303(b). 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). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for a TMJ disorder. The Veteran’s service treatment records show that his entrance and separation examinations were normal with regard to the relevant body system. In July 1969, the Veteran sought treatment for right jaw pain at the TM joint for the past two weeks; however, the treating physician questioned whether such pain was the related to the Veteran’s right-sided otitis. There were no further complaints or treatment during service. The Veteran was afforded a VA examination in August 2013 in connection with his TMJ claim. At that time, the VA examiner reviewed the claims file and examined the Veteran. He indicated that the Veteran did not currently have and never had a TMJ condition. The examiner found nothing out of the ordinary which would reveal a TMJ condition. He noted that the Veteran’s popping and clicking of the TMJ was very slight, non-painful, and infrequent. The Board acknowledges that the Veteran has claimed that that he has a TMJ disorder and that it is related to his military service. He is competent to report his experience and symptoms in service and thereafter. Lay persons may provide competent testimony as to observable symptoms and manifestations of a disorder. Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). A veteran can attest to factual matters of which he has or had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Nevertheless, the Board finds that the August 2013 VA examiner’s opinion is more probative in assessing whether the Veteran has a current TMJ disorder and whether that disorder is related to service. The August 2013 VA examiner considered the Veteran’s reported medical history and complaints and performed a physical examination, yet found no objective abnormalities. The August 2013 opinion is also based on a review of the claims file, including the Veteran’s lay statements and medical records, and the examiner’s own medical knowledge and training. Further, this opinion is supported by the medical records, which do not document the diagnosis or treatment of a TMJ disorder. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. Because the evidence shows that the Veteran does not have a TMJ disorder, the Board concludes that service connection is not warranted, and discussion of the remaining elements is not necessary. See Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006) (the absence of any one element will result in denial of service connection). As the weight of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule does not apply, and the claim is denied. REASONS FOR REMAND The Board finds that an additional medical opinion is needed to determine the etiology of the Veteran’s hearing loss and tinnitus. The Veteran was afforded a VA examination in August 2013 during which the examiner opined that his hearing loss was not due to service because his hearing was normal at discharge. However, the examiner did not address the significance of that fact or discuss whether delayed-onset hearing loss could be related to service. The Board also notes that the Veteran was afforded a VA examination in July 2013 in connection with his claim for service connection for migraines. The examiner found that the Veteran had never been diagnosed with a headache condition, but instead had been diagnosed with polycythemia after separation from service. However, the examiner did not address whether any headaches attributable to the disorder could be related to service. Therefore, an additional medical opinion is needed. In addition, the Veteran was afforded a VA examination in July 2013 in connection with his claim for service connection for a back disorder. The examiner opined that the Veteran’s current back disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, including lifting. In so doing, he noted, in pertinent part, that there was documentation of a slipped disc on the Veteran’s enlistment examination. However, a back disorder was not noted on the clinical evaluation. Rather, the Veteran had reported it in his medical history. Thus, the presumption of soundness applies, and the Board finds that an additional medical opinion is needed. Accordingly, the case is REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his back, migraines, hearing loss, and tinnitus. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. Any outstanding VA medical records should also be obtained and associated with the claims file. 2. After obtaining any outstanding records, the Veteran should be afforded a VA examination to determine the nature and etiology of any hearing loss and tinnitus that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner is also advised that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. The examiner should provide an opinion as to whether it is at least as likely as not that any current hearing loss and tinnitus is causally or etiologically related to the Veteran’s military service, to include noise exposure therein. In so doing, he or she should address the significance, if any, of any threshold shifts or lack thereof in service. In rendering this opinion, the examiner should also discuss medically known or theoretical causes of hearing loss and describe how hearing loss which results from noise exposure generally presents or develops in most cases, as distinguished from how hearing loss develops from other causes, in determining the likelihood that current hearing loss was caused by noise exposure in service as opposed to some other cause. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review 3. After obtaining any outstanding records, the Veteran should be afforded a VA examination to determine the nature and etiology of any migraines that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran has any headaches that are causally or etiologically related to his military service, to include any injury or symptomatology therein. If the examiner determines that the headaches are attributable to another disorder, such as polycythemia, rather than a headache disorder, he or she should address whether the underlying disorder is causally or etiologically related to his military service. See e.g. July 2013 VA examination report. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After the above development has been completed, the Veteran should be afforded a VA examination to determine the nature and etiology of any back disorder, to include the low back, neck, and/or upper back, that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether the Veteran clearly and unmistakably had a back disorder prior to his active duty service. If so, he or she should state whether there was an increase in the severity of the preexisting disorder during service and whether any increase was due to the natural progression of the disorder or whether it represented a chronic worsening of the underlying pathology. If the examiner determines that a current back disorder did not clearly and unmistakably preexist service, he or she should state whether it is at least as likely as not that the Veteran’s current back disorder manifested in or is otherwise causally or etiologically related to his military service, including any symptomatology, injury, or lifting therein. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Rideout-Davidson, Counsel