Citation Nr: 1820437 Decision Date: 04/04/18 Archive Date: 04/16/18 DOCKET NO. 17-33 239 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for residuals of a left jaw oral surgery. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Riordan, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1953 to October 1955 with the United States Army. The Veteran's appeal comes before the Board of Veteran's Appeals (Board) from an April 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. The Veteran's case was subsequently transferred to the VA RO in Winston-Salem, North Carolina. On February 28, 2018, in a video-conference hearing, the Veteran provided testimony regarding his claim to the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT Medical evidence indicates it is at least as likely as not that the Veteran's left jaw surgery during his period of active service caused or aggravated his current residuals of left jaw surgery. CONCLUSION OF LAW The criteria for a service connection for residuals of a left jaw surgery have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.306 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). However, if, as here, a preexisting disorder is noted upon entry into service, the Veteran cannot bring a claim for service incurrence for that disorder, but he may bring a claim for service-connected aggravation of that disorder. Paulson v. Brown, 7 Vet. App. 466, 468 (1995). In that case, the provisions of 38 U.S.C. § 1153 and 38 C.F.R. § 3.306 apply. Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). Left facial paralysis was noted on the Veteran's October 1953 entrance examination. Service connection is warranted if the preexisting disorder was aggravated by a veteran's active service. A preexisting injury or disease will be presumed to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability was due to the natural progress of the disease. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306(a) (2017). The burden is on VA to establish a lack of aggravation of the preexisting disability by showing clear and unmistakable evidence that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153 (2017); 38 C.F.R. § 3.306(b) (2017); see also Jensen, 19 F.3d at 1417. The Veteran entered service with a previous left facial paralysis disability, which was noted on his entrance examination. Subsequent service treatment records (STRs) reiterated that the Veteran was "quite certain" he had left facial paralysis prior to service. A February 1955 STR documents the Veteran's report of a pre-service automobile accident resulting in direct trauma to the left temporomandibular joint. The Veteran was diagnosed in service with arthritis as a result of this trauma. He had limited mobility of his jaw, crepitus, and facial paralysis on the left side. He was treated with cortisone. Another February 1955 STR noted that after treatment with cortisone the condition failed to improve, such that surgery was needed. This shows that there was an increase in severity of the disability during service. The Veteran then had left jaw surgery in March 1955 to remove the left condyle of the mandible. He currently has residuals of the surgery. A March 2016 VA examination noted the Veteran has "profound facial asymmetry subsequent to his left condylectomy and history of facial nerve paralysis, and as a result, he has redundant facial tissues on his left side extending from his left infraorbital ridge to the inferior border of his left mandible." The examiner diagnosed edentulism; collapsed vertical dimension of occlusion; malocclusion and esthetic compromise. The examiner concluded that it was less likely than not, "although not impossible," that the in-service treatment aggravated the jaw condition beyond its natural progression. In July 2015 the Veteran submitted multiple opinions from private medical providers stating the Veteran's current condition is a result of the jaw surgery performed during the Veteran's period of active service. One medical opinion provided by the Veteran states: I have reviewed [the Veteran's] military medical records and it is my opinion that it is at least as likely as not (greater than 50%) that [the Veteran's] inability to properly eat and function, along with facial disfigurement, and lack of musculoskeletal movement, are aggravated from the surgery that was performed March 2, 1955, at Tokyo Army Hospital, during his military service. The rationale of this opinion is this: Prior to military duty, [the Veteran] was involved in an automobile accident in November 1951. As a result he suffered a blow to his left temporomandibular joint (TMJ). During his military service he had (6) teeth removed on December 7, 1953. In the dental records, notations of previous trauma to left TMJ are absent and precautions not to inflict further trauma during dental surgery area also absent. [The Veteran] was sedated during the oral surgery which did not allow him to communicate with the surgeon if the TMJ was being traumatized while his teeth were being extracted. Teeth #s 17, 18, 19 were extracted, lower left molar. To remove these three teeth placed significant traumatic forces on an already compromised condyle. In addition, #s 30 and 31 were extracted, lower right molars. This also places traumatic forces on the left condyle while removing. It is highly likely that [the Veteran] left condyle was damaged further without [proper] supporting to his mandible during the extraction procedure. On February 1955, one year later, [the Veteran] was sent to Tokyo Army Hospital for treatment on his left TMJ. The nursing notes stated "Does not seem in pain. Says he has trouble chewing." On March 2, 1955, his left condyle was removed. This may have been the procedure of choice at the time, but a condylectomy basically makes the person a dental cripple. The right condyle, the left condyle, and the teeth act as a three point foundation for mandibular function. Once one of the condyles is removed, the person is handicapped, impaired by being unable to eat properly, speak properly, etc., because movements are limited. Since March 2, 1955, [the Veteran] has become a dental cripple due to the surgery performed that day. In light of the evidence discussed above, the Board finds that the preponderance of the probative evidence of record weighs in favor of the claim of service connection for residuals of left jaw surgery. He had a left jaw condition that existed prior to service. It increased in severity during service, and the June 2015 medical opinion is highly probative in support of a finding that the preexisting condition was aggravated by service. ORDER Entitlement to service connection for residuals of left jaw surgery is granted. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs