Citation Nr: 21000898 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 19-39 240 DATE: January 6, 2021 ORDER New and material evidence, having been received, the claim of entitlement to service connection for temporomandibular joint disability (TMJ) is reopened. New and material evidence, having been received, the claim of entitlement to service connection for facial scar, lower jaw area, is reopened. New and material evidence, having been received, the claim of entitlement to service connection for headaches, is reopened. New and material evidence, having been received, the claim of entitlement to service connection for a low back condition, is reopened. Entitlement to service connection for facial scar, lower jaw area, is granted. Entitlement to service connection for headaches, to include as secondary to TMJ, is granted. Entitlement to service connection for a TMJ is granted Entitlement to service connection for a low back disability is granted. INTRODUCTION The Veteran served on active duty from March 1977 to March 1980. These matters come before the Board of Veterans Affairs (Board) on appeal from a decision rating by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran testified at a hearing FINDINGS OF FACT 1. New and material evidence has been submitted to reopen the Veteran’s claim for service connection for TMJ. 2. New and material evidence has been submitted to reopen the Veteran’s claim for service connection for a facial scar. 3. New and material evidence has been submitted to reopen the Veteran’s claim for service connection for headaches. 4. New and material evidence has been submitted to reopen the Veteran’s claim for service connection for low back disability. 5. The most probative evidence of record demonstrates that the Veteran’s TMJ condition was incurred in or due to his service. 6. The most probative evidence of record demonstrates that the Veteran’s facial scar was incurred during service. 7. The most probative evidence of record demonstrates that the Veteran’s headaches had their onset in service and are secondary to his service-connected TMJ. 8. The most probative evidence of record demonstrates that the Veteran’s low back disability was incurred in or due to his service. CONCLUSIONS OF LAW 1. The criteria for new and material evidence having been received, the appeal to reopen the claim for service connection for TMJ have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for new and material evidence having been received, the appeal to reopen the claim for service connection for facial scar have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for new and material evidence having been received, the appeal to reopen the claim for service connection for headaches have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The criteria for new and material evidence having been received, the appeal to reopen the claim for service connection for low back disability have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The criteria for service connection for TMJ have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. 6. The criteria for service connection for facial scar have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. 7. The criteria for service connection for headaches as secondary to service-connected TMJ have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. 8. The criteria for service connection for low back disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303.   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claims to Reopen The Veteran previously submitted claims of entitlement to service connection for TMJ, facial scar, headaches, and a low back disability, which were denied in an October 2004 rating decision. Each claim was denied on the basis that a link was not found between the claimed disability and his military service. The October 2004 rating decision became final because the Veteran did not submit a notice of disagreement or new and material evidence in the appeals period. See 38 C.F.R. § 3.156 (b). In August 2016, the Veteran submitted a claim to reopen the issue of entitlement to service connection for TMJ, which was denied in an October 2016 rating decision. In August 2017, which is within one of the October 2016 rating decision, the Veteran submitted another claim to reopen the issue of entitlement to service connection for TMJ, as well as claims to reopen the issues of entitlement to service connection for facial scar, headaches, and a low back disability. After the Veteran’s claims were denied in an August 2017 rating decision, he perfected an appeal to the Board. In connection with his August 2016 and August 2017 claims, additional treatment records and lay statements have been associated with the file purporting to show that the Veteran’s disabilities ae related to service. Thus, the Board finds that new and material evidence has been received sufficient to reopen the Veteran’s previously denied claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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); 38 C.F.R. § 3.303(a). In addition to the elements of direct service connection, service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The evidence of record includes current diagnoses of TMJ, a facial scar, headaches, and a low back disability. In support of his claims, the Veteran submitted statements describing an in-service injury. Specifically, the Veteran asserted that he was intentionally struck in the face by a fellow service member’s elbow during a football game. He stated that this blow resulted in severe pain and headaches, as well as stitches to close a laceration on his chin (with a residual facial scar). With respect to his low back, the Veteran asserted that the rigors of his active duty (namely lifting, carrying) resulted in his current disability. A service treatment report, dated on February 23, 1978, shows that the Veteran endorsed experiencing “serious injury/surgeries of head, face, or jaw” that required stitches. The report did specify when or how this injury occurred. An October 1978 service treatment report showed that the Veteran complained of and was treated for back pain, with a 1-week history due to “some” heavy lifting, but no specific injury. The assessment was back spasm. In a July 2017 letter, the Veteran’s parents reported that the Veteran sustained an injury during physical training that required stitches. They indicated that the Veteran called home and told about the incident but said that he was okay and that they should not worry. In a November 2017 letter, the Veteran’s brother (a pastor) stated that the Veteran injured his chin and needed stitches around 1977. He recalled that their parents were concerned, but the Veteran reassured them that he was fine. The pastor also stated that he did not recall the Veteran having a back problem prior to service and that he injured his back while stationed in Germany. In a January 2018 letter, a L.M.S. stated that he served with the Veteran at the time of the injury. Specifically, L.M.S. stated that the Veteran was elbowed in the chin during physical training. The Veteran received medical attention at a hospital, including stitches, and bandages that were on for weeks. Additionally, L.M.S. stated that he was stationed with the Veteran in Germany. L.M.S. stated that the Veteran complained of and received treatment for “severe back aches” and was confined to the barracks on several occasions. Pursuant to his claims, the Veteran was scheduled for and underwent VA examinations in August 2019. Ultimately, the examiner rendered an opinion that was predominately, if not entirely legal, not medical in nature. The entire opinion is as follows: The claims have been denied in 1981, 2004, 2016, 2017, and 2018. There has since been a supporting letter from a fellow soldier in 2018, [L.M.S.] recalling his back injury and his facial injury. The remainder of the evidence is all post facto and does not lend sufficient power to change the opinions of the trier of fact on the prior decisions. There is insufficient evidence of any compelling rationale for acceptance of the claims. Given the absence of any medical analysis, the Board attaches no probative value to the examiner’s opinion. According to a January 2018 VA treatment report, there is a plausible etiological relationship between the Veteran’s TMJ and his in-service injury, and an etiological relationship between his TMJ and his headaches. Further, this report indicates that there is a plausible etiological relationship between the Veteran’s current low back disability and his active duty. The Board finds the statements submitted by the Veteran, his parents, his brother, and L.M.S. to be competent and credible evidence of the events discussed, especially given the presence of corroborating service treatment records. Given the favorable evidence of record, the Board finds that the establishment of service connection for TMJ, facial scar, and low back disability is warranted on a direct basis and service connection for headaches as secondary to the service-connected TMJ is warranted. 38 C.F.R. § 3.303, 3.310. Indeed, the competent evidence shows that the Veteran has had recurrent jaw, scar, headaches and back problems since service. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that “the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty”). In light of the foregoing, despite the negative evidence of record, the Board finds that the evidence of record is at least in equipoise as to the salient questions presented. Accordingly, service connection for TMJ, facial scar, headaches, and low back disability is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean G. Pflugner, 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.