Citation Nr: 20005867 Decision Date: 01/24/20 Archive Date: 01/23/20 DOCKET NO. 14-14 362 “DATE: January 24, 2020 ORDER Service connection for myalgia left masseter region with temporomandibular joint disorder (TMJ) is denied. FINDING OF FACT The Veteran does not have a dental disability for VA compensation purposes. CONCLUSION OF LAW The criteria for service connection for myalgia left masseter region with TMJ have not been met. 38 U.S.C. §§ 1110, 1712, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310, 4.150. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 2007 to July 2011. In May 2015, the Veteran was afforded a videoconference hearing before Matthew W. Blackwelder, who is the Veterans Law Judge rendering the determination in this claim and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C. § 7102 (b). In October 2015, the Board remanded this claim for additional development. 1. Myalgia Left Masseter Region with TMJ. The Veteran asserts that service connection is warranted for myalgia left masseter region with TMJ both on a direct basis, and as secondary to his service-connected posttraumatic stress disorder (PTSD). During his hearing, held in May 2015, the Veteran testified to the following: He had jaw pain during service, and grinding of his teeth. He was treated for his symptoms on one occasion, and he was given aspirin. Thereafter, he self-medicated with aspirin. Following separation from service, he was found to have some wear on his jaw bone and his teeth. In his appeal (VA Form 9), received in July 2014, the Veteran asserted that he was treated for dental hypersensitivity during service, and that he was treated for his symptoms within one year of separation from service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted on the basis of a post-service initial diagnosis of a disease, when “all of the evidence, including that pertinent to service, establishes that the disease was incurred during service.” See 38 C.F.R. § 3.303 (d). Service connection may be granted, on a secondary basis, for a disability, which is caused or aggravated by a service-connected disorder. 38 C.F.R. § 3.310. Dental disabilities which may be awarded compensable disability ratings are now set forth under 38 C.F.R. § 4.150. These disabilities include chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss of the mandible, nonunion or malunion of the mandible, limited temporomandibular motion, loss of the ramus, loss of the condyloid or coronoid processes, loss of the hard palate, loss of teeth due to the loss of substance of the body of the maxilla or mandible and where the lost masticatory surface cannot be restored by suitable prosthesis, when the bone loss is a result of trauma or disease but not the result of periodontal disease. 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. Rating activity should consider each defective or missing tooth and each disease of the teeth and periodontal tissues separately to determine whether the condition was incurred or aggravated in line of duty during active service and, when applicable, to determine whether the condition is due to combat or other in-service trauma, or whether the veteran was interned as a prisoner of war. 38 C.F.R. § 3.381 (b). For loss of the teeth, bone loss through trauma or disease, such as osteomyelitis, must be shown for compensable purposes. The loss of the alveolar process as a result of periodontal disease is not considered disabling. See 38 C.F.R. § 4.150, Diagnostic Code 9913. In addition, to be compensable, the lost masticatory surface for any tooth cannot be restorable by suitable prosthesis. Id. Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease (pyorrhea) are not disabling conditions. See 38 C.F.R. § 3.381. The term “service trauma” does not include the intended effects of therapy or restorative dental care and treatment provided during a veteran’s active service. See 38 C.F.R. § 3.306 (b)(1); VAOGCPREC 5-97, 62 Fed. Reg. 15,566 (1997). However, the United States Court of Appeals for the Federal Circuit has elaborated that an unintended result of medical treatment due to military negligence or malpractice could be “service trauma” pursuant to 38 U.S.C. § 1712 (a)(1)(C). Neilson v. Shinseki, 607 F.3d 802 (Fed. Cir. 2010). The Veteran’s service treatment records show that in December 2008, he reported having some sensitivity in his lower right and left jaw. He was noted to have mild attrition and exposed dentition. The assessment noted dental hypersensitivity. In August 2008 and December 2009, he was noted to have gingivitis. A February 2011 report of medical history shows that the Veteran indicated that he did not have a history of severe tooth or gum trouble. A February 2011 report of medical assessment shows that the Veteran indicated that he did not have any dental problems. As for the post-service medical evidence, a VA examination report, dated in January 2012, shows that the Veteran reported the gradual onset of left jaw pain and discomfort over a period of two to three months, with almost complete resolution of his jaw pain. He also reported pain while chewing since June 2011. It was indicated that his symptoms were possibly from sleeping with his mouth open. He also reported difficulty chewing, and that he has used aspirin for his symptoms, but that he had not had any other treatment. It was noted that degenerative or traumatic arthritis was not documented by imaging studies. On examination, there was no limitation of motion of the jaw, and no objective evidence of painful motion. The diagnosis was temporomandibular joint dysfunction left, with a date of diagnosis of January 12, 2012. The examiner indicated that the Veteran’s TMJ did not result in any functional loss, or impact on his ability to work. VA progress notes show that in November 2012, the Veteran was treated for complaints of jaw pain. A report from January 2012 was noted to indicate myalgia of the left masseter region. However, the Veteran reported that his symptoms were currently on the right side of his jaw. He complained of pain every morning and at least 2-3 times a day, and that he has difficulty opening his mouth wide enough to put his tooth brush into his mouth. He said that it also hurts to chew gum, or chew anything that is “tough.” He reported that he has difficulty opening his mouth and that his jaw will pop on the right side. The relevant assessment was TMJ. In October 2015, the Board remanded this claim in order to afford the Veteran an examination. In December 2015, the Veteran was scheduled for an examination. He failed to report for his examination, and there no record to show that he requested that his examination be rescheduled. VA regulations note that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655. Incumbent in this though is the fact that if service connection could have been established on the earlier record, it would have been, and a remand would not have been necessary. To this end, the Veteran was clearly informed of his failure to attend his examination by a January 2016 supplemental statement of the case. The Veteran responded that he had no additional evidence to add and asked the Board to proceed in January 2016, and his representative submitted argument in a 2019 brief but did not present good cause for the Veteran’s missed examination, and did not argue that a second examination should be scheduled. The Board finds that the claim must be denied. During his service, the Veteran was noted to have mild attrition and exposed dentition, with dental hypersensitivity, and gingivitis. However, there is no evidence to show that the Veteran sustained an unintended result of medical treatment due to military negligence or malpractice due to his treatment. Neilson v. Shinseki, 607 F.3d 802 (Fed. Cir. 2010). The Veteran is not shown to have been a prisoner of war. During his VA examination in January 2012, the Veteran complained of some pain while chewing, and difficulty opening his mouth. However, no limitation in temporomandibular motion was shown. See 38 C.F.R. § 4.150, Diagnostic Code 9905. There is no evidence to show that the Veteran had bruxism or TMJ during service that caused or contributed to a dental disability as defined at 38 C.F.R. § 4.150. In summary, there is no evidence to show that the Veteran has one of the dental disorders listed under 38 C.F.R. § 4.150, and there is therefore no basis for an award of compensation based on the Veteran’s claim. Given the foregoing, the evidence does not show that the Veteran sustained compensable “dental trauma” in service. As the Veteran does not have a compensable dental disorder, there is no basis for an award of compensation based on the Veteran’s claim on any basis, to include as secondary to service-connected disability. (Continued on the next page)   In reaching this decision, the Board has considered the Veteran’s assertions. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, it falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.S.E., 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.