Citation Nr: 18124792 Decision Date: 08/08/18 Archive Date: 08/07/18 DOCKET NO. 12-16 538 DATE: August 8, 2018 ORDER Entitlement to service connection for temporomandibular joint disorder (TMJ) is granted. FINDING OF FACT The competent and credible evidence of record reflects it is at least as likely as not the Veteran developed a recurrent TMJ disorder while on active duty. CONCLUSION OF LAW Service connection for TMJ is warranted. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1993 to December 1998. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. This claim was previously before the Board in November 2017, at which time it was remanded for additional development. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran’s demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). TMJ In this case, the Veteran has essentially contended that she developed recurrent symptoms of her TMJ disorder while on active duty. At a June 2017 VA examination, she recounted that she had this issue since the 1990s, where she was being seen for it while on active duty and treated with muscle relaxers. The Board finds the Veteran’s account of such symptomatology to be both competent and credible. Nevertheless, competent medical evidence is required to determine whether such symptomatology is indicative of a chronic TMJ disorder. The service treatment records reflect in-service treatment for TMJ. In May 1998, the Veteran was diagnosed with a right temporomandibular disorder with an unknown etiology. She was prescribed medication, and also advised to begin a soft diet and sleep on her left side or back. The record also shows that the Veteran received additional consultation and treatment in 2007 and 2009. The Board acknowledges that a December 2017 VA examination included a competent medical opinion against the Veteran’s current TMJ being etiologically linked to his active service. However, the examiner noted that the Veteran was treated for TMJ after service, highlight records from 2009, 2011, and 2013. The supporting rationale included that “[a]ll dates which show treatment or diagnosis of [TMJ] the veteran was not active duty.” That rationale is inconsistent with the documented in-service treatment in May 1998. As such, it does not appear this examination was based upon a complete assessment of the 1998 report and of the Veteran’s documented medical history. Moreover, the Board does not doubt the Veteran’s competent and credible account of recurrent symptomatology which developed during active service. Therefore, the Board finds that the service treatment reports and the Veteran’s competent and credible appellate contentions are of more probative value than the examiner’s opinion. (Continued on the next page)   In summary, the Veteran has provided competent and credible lay evidence that she developed recurrent TMJ symptoms while on active duty; she has documented in-service treatment for TMJ problems, and a current diagnosis of a chronic TMJ disorder. In view of the foregoing, the Board finds competent and credible evidence of record reflects it is at least as likely as not the Veteran developed a recurrent TMJ disorder while on active duty. In this regard, any doubt is resolved in the Veteran’s favor. Therefore, service connection is warranted. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel