Citation Nr: 20002853 Decision Date: 01/14/20 Archive Date: 01/13/20 DOCKET NO. 18-12 096 DATE: January 14, 2020 ORDER Entitlement to service connection for temporomandibular joint disability (TMJ) is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of TMJ. CONCLUSION OF LAW The criteria for service connection for TMJ are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from July 1955 to March 1960, including four years of foreign service. The Veteran thereafter served with the United States Air Force Reserve until July 1963. This matter is before the Board of Veterans’ Appeal (Board) on appeal from an October 2016 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in November 2019. A transcript of the hearing is in the Veteran’s file. Entitlement to service connection for temporomandibular joint disability (TMJ). The Veteran is seeking service connection for TMJ. He contends that his claimed TMJ is the result of his history of boxing during his active duty service. Service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) The existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Upon review of the record, the Board finds that there is no competent evidence showing that the Veteran has a current diagnosis of TMJ during the course of his claim. A review of the post-service private treatment records submitted by the Veteran shows no evidence of a diagnosis of or treatment for TMJ or any other jaw disability. The Veteran’s service treatment records do not contain any notation, treatment, or diagnosis related to TMJ. These records, spanning almost two decades, show treatment for a number of other conditions, but show no evidence of treatment for the Veteran’s claimed jaw disability. Further, at his hearing, the Veteran denied suffering from any current problem with his jaw, stating that he could not say that it is currently a problem. While the Veteran stated that he did not wish to formally withdraw his claim, he did acknowledge that he has not been diagnosed with a disability or sought treatment for this issue. In taking this action, the Board makes no findings as to the evidence of an in-service incurrence of the Veteran’s condition. Instead, the lack of a disability alone compels the result here. Finally, though no VA examination was performed with regard to this issue, such an examination is not necessary. There is no evidence of a current disability as reflected by the Veteran’s private treatment records, and the Veteran himself denied current symptoms. Under these circumstances, no VA examination is needed. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. §§ 1110; 1131. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C. § 1131 requires existence of present disability for VA compensation purposes); see also Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). Accordingly, service connection for TMJ is denied. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for tinnitus is remanded. With regards to the Veteran’s bilateral hearing loss and tinnitus, the Veteran’s testimony regarding his in-service hearing loss has been added to the file since a September 2017 VA opinion. The Veteran contends that he was exposed to hazardous noise serving as an air policeman while stationed at the Bitburg Air Base. He testified to the exposure to jet engine noise and sounds of base sirens. The Veteran also contends that his bilateral hearing loss and tinnitus could be the result of injuries suffered while boxing. While previous examiners have discussed the Veteran’s in-service noise exposure, there has been no opinion offered as to whether the Veteran’s hearing loss and tinnitus may be a result of his claimed in-service boxing injuries. An additional opinion is therefore warranted. The matters are REMANDED for the following actions: Obtain an opinion as to whether the Veteran’s bilateral hearing loss and tinnitus are related to his active service. Whether an examination is needed prior to rendering this opinion is left to the discretion of the examiner. Regardless of whether an examination is performed, the examiner is to state: (a) Whether it is at least as likely as not that the Veteran’s bilateral hearing loss is related to his active service, to include his in-service noise exposure at Bitburg Air Force Base, and physical trauma from boxing. (b) Whether it is at least as likely as not that the Veteran’s tinnitus is related to his active service, to include his in-service noise exposure at Bitburg Air Force Base, and physical trauma from boxing. In offering the requested opinions, the examiner must detail and discuss the Veteran’s statements regarding his history of noise exposure and boxing injuries in service. A complete rationale for all requested opinions must be offered by the reviewing examiner. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. R. Higgins, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.