Citation Nr: 21004679 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 17-00 239 DATE: January 27, 2021 ORDER Entitlement to service connection for right temporomandibular joint disorder with malocclusion, severe anterior open bite, and bruxism, (dental disability) is granted. Entitlement to service connection for tension headaches, as secondary to right temporomandibular joint disorder with malocclusion, severe anterior open bite, and bruxism, is granted. Entitlement to service connection for a disability manifested by ear canal problems, to include as secondary to a dental disability, is denied. REMANDED Entitlement to service connection for sinus problems, diagnosed as allergic rhinitis and deviated septum, to include as secondary to right temporomandibular joint disorder with malocclusion, severe anterior open bite and bruxism, is remanded. Entitlement to service connection for tinnitus, to include as secondary to right temporomandibular joint disorder with malocclusion, severe anterior open bite and bruxism, is remanded. FINDINGS OF FACT 1. The Veteran’s dental disability was acquired and had an onset during service. 2. The Veteran’s tension headaches are proximately due to his service-connected dental disability. 3. The evidence of record does not indicate the Veteran has a diagnosis of a disability manifested by ear canal problems at any time during the pendency of this claim. CONCLUSIONS OF LAW 1. The criteria for service connection for right temporomandibular joint disorder with malocclusion, severe anterior open bite, and bruxism, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.150. 2. The criteria for service connection for tension headaches, as secondary to the Veteran’s service-connected dental disability, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for a disability manifested by ear canal problems, to include as secondary to the Veteran’s service-connected dental disability, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1984 to March 1988. This matter comes before the Board of Veterans’ Appeals (BVA or Board) from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board. The requested hearing was conducted in June 2019 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. In October 2019, the Board remanded these claims for additional development. Service Connection The Veteran seeks entitlement to service connection for a dental disability, claimed as malocclusion with headaches, jaw popping, sinus and ear canal problems. Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). In general, service connection requires competent evidence showing: (1) the existence of a present 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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a) and (b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish entitlement to service connection on a secondary basis, there must be evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant). 1. Entitlement to service connection for a dental disability, claimed as a severe malocclusion. The Veteran seeks entitlement to service connection for a dental disability, claimed as a severe malocclusion. Dental disorders are treated differently than other medical disorders in the VA benefits system. Service connection for a dental disability for compensation purposes can be established only for the specific types of dental and oral conditions listed under 38 C.F.R. § 4.150. These conditions include chronic osteomyelitis, osteonecrosis or osteoradionecrosis of the maxilla or mandible, loss of the mandible, nonunion of the mandible, temporomandibular disorder (TMD), loss of condyloid process, loss of coronoid process, loss of hard palate, loss of teeth due to loss of substance of body of maxilla or mandible without loss of continuity, loss of maxilla, malunion or nonunion of maxilla, benign hard or soft tissue neoplasm, and malignant hard or soft tissue neoplasm. See 38 C.F.R. § 4.150, Diagnostic Codes 9900-9918. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has a dental or oral disability under 38 C.F.R. § 4.150 for which benefits are being claimed. Here, the Veteran was afforded VA examinations in February 2020, at which time he was diagnosed with right temporomandibular joint disorder with malocclusion, severe anterior open bite, and bruxism. As such, the evidence establishes a current dental disability of temporomandibular disorder (TMD), Diagnostic Code 9905. As such, Shedden element (1), current diagnosis, is met. The Veteran’s enlistment examination in June 1983 did not note any dental abnormalities and his dental condition was noted to be acceptable. Service treatment records indicate the Veteran was seen for dental treatment on multiple occasions throughout service without any indications of a dental disorder, including June 1984, October 1984, March 1985, April 1985, May 1986, July 1986, August 1986, and April 1987. Then, in November 1987, dental treatment notes indicate the Veteran was found to have a severe malocclusion on examination requiring orthodontic treatment and orthodontic surgery to correct; however, the Veteran only had six months remaining on active duty and therefore not sufficient time remaining to treat the problem. As such, the Board finds that Shedden element (2) has been satisfied. The Veteran was afforded a VA examination in February 2020 and medical opinions were obtained. It was noted that the Veteran reported he began having stress in boot camp because he had difficulty marching and was bullied. He began thumb-sucking to relieve stress, which he worked very hard to keep private, and led to further self-imposed isolation. The examiner noted that the habit and isolation continued until 1986, at which time the upper part of his trigger finger was lost in a service accident; he was told that this injury could prevent him qualifying for re-enlistment if he could not pull a trigger, which increased stress. [Service connection is in effect for amputation of right index finger.] The examiner stated that regarding the onset of TMD, the Veteran indicated that during service, he was aware that his right TMJ and muscles had sharp pains when he chewed on the right side and he was waking up with the right side of his TMJ area and muscles sore. Additionally, the Veteran was aware that after bootcamp during service, he began grinding his teeth nightly. The examiner indicated that the Veteran currently has a severe anterior open bite from thumb-sucking. He also has bruxism, resulting in morning right side muscle soreness, worn occlusal surfaces of all remaining posterior teeth, TMJ popping on right side, and sharp, quick pain in the lower right jaw when chewing on the right side. The examiner opined that the Veteran’s dental disorder did not pre-exist service and was acquired during service, explaining that the Veteran cleared his entrance examination, whereas his dental disorder would probably disqualify him if he tried to re-enlist in 1987. The examiner noted that the 1984 service entrance dental examination and Panorex did not note any malocclusion. Addendum opinions were obtained in September 2020. The examiner opined that the Veteran’s malocclusion is an acquired disorder felt to be a result of his thumb sucking that started during basic training and continued throughout the remainder of his active service. The examiner explained that the Veteran’s malocclusion caused the Veteran to have temporomandibular joint dysfunction. The examiner noted that bruxism was discovered after boot camp but was diagnosed while in the service and opined that the Veteran’s bruxism was most likely a result of stress. Thus, stress caused thumb sucking which caused a malocclusion resulting in TMD, and stress caused bruxism resulting in TMD. There are no medical opinions to the contrary of record. The Board finds no adequate basis to reject the evidence of record that is favorable to the Veteran, based on a lack of credibility or probative value. Madden v. Gober,125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West,12 Vet. App. 22, 26 (1998). The Veteran has a current diagnosis of TMD with malocclusion, severe anterior open bite, and bruxism, an in-service incident, and medical opinions that relate his current diagnosis to his time in service. Accordingly, resolving all reasonable doubt in his favor, the Board finds that service connection is granted. 2. Entitlement to service connection for headaches. The Veteran seeks entitlement to service connection for headaches. He asserts he experiences headaches as a result of his dental disability. See March 2014 statement. Because the Board is granting this claim on a secondary basis due to causation, direct service connection will not be discussed in this decision. As a result of this Board decision, service connection has been granted for a dental disability, diagnosed as right temporomandibular joint disorder with malocclusion, severe anterior open bite and bruxism. The Veteran has a diagnosis of tension headaches. See December 2019 VA examination. As such, element (1) set forth under Allen, current disability, has been satisfied. The Board finds that the evidence indicates the Veteran’s headaches are proximately due to his service-connected dental disability. An October 2020 VA examiner opined that the Veteran’s headaches were at least as likely as not due to his dental disability. The examiner explained that the Veteran’s malocclusion caused his TMD, and TMD is strongly associated with headaches. Accordingly, the Board finds that element (2) under Allen, nexus, has been satisfied. There are no medical opinions to the contrary of record. As such, entitlement to service connection for tension headaches, as secondary to the Veteran’s dental disability, is granted. 3. Entitlement to service connection for a disability manifested by ear canal problems. The Veteran asserts he experiences ear canal problems as a result of his dental disability. See March 2014 statement. Unfortunately, the preponderance of the evidence indicates the Veteran is not diagnosed with a disability manifested by ear canal problems. The Veteran was afforded a VA examination in February 2020, at which time he reported symptoms of ear congestion; however, there was no objective evidence of any ear disorder or peripheral vestibular condition. The examiner specifically noted that the Veteran did not have any ear or peripheral vestibular condition that had a functional impact. The Board has considered the Veteran’s arguments. The Board notes that the Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss current pain and other experienced symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). However, because no functional impairment has been demonstrated and there is no post-service diagnosis of a disability manifested by ear canal problems, the Board finds that the Veteran does not have a current disability. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a “disability” under 38 U.S.C. § 1110 refers to functional impairment of earning capacity). The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. §§ 1110, 1131; see also 38 C.F.R. §§ 3.303, 3.304. Thus, as no disability is shown, there can be no valid claim for service connection. In the absence of a disability, the other elements of service connection need not be discussed, and service connection must be denied. REASONS FOR REMAND 4. Entitlement to service connection for sinus problems, diagnosed as allergic rhinitis and deviated septum, to include as secondary to service-connected temporomandibular joint disorder with malocclusion, severe anterior open bite and bruxism. The Veteran is diagnosed with allergic rhinitis and deviated septum. See February 2020 VA examination. In September 2020, a VA examiner opined that it was less likely than not that the Veteran’s allergic rhinitis and deviated septum were permanently aggravated beyond a natural progression by his dental disability. Although there is a pending relevant VA regulation, the law as currently in effect is reflected in Ward v. Wilkie, in which the United States Court of Appeals for Veterans Claims held that, for secondary service connection, “aggravation” need not be permanent in nature. 31 Vet. App. 233, 241-42 (2019). Rather “permanently aggravated” is the standard used for service connection of a disorder noted on the medical examination upon entry into service. 38 C.F.R. § 3.306. Accordingly, a new medical opinion should be obtained on remand. 5. Entitlement to service connection for tinnitus, to include as secondary to service-connected temporomandibular joint disorder with malocclusion, severe anterior open bite and bruxism. The Veteran seeks entitlement to service connection for tinnitus. To date, a medical opinion has not yet been obtained as to whether the Veteran’s tinnitus is proximately due to or aggravated by his now service-connected dental disability. On remand, a medical opinion should be obtained. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated treatment records. 2. Obtain an addendum VA medical opinion for the Veteran’s claimed sinus problems, diagnosed as allergic rhinitis and deviated septum. The claims folder must be provided to the examiner for review. The examiner should state in the examination report that the claims folder has been reviewed. *The examiner should opine as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s diagnosed allergic rhinitis and deviated septum are AGGRAVATED (beyond a natural progression) by his service-connected dental disability. *In rendering this opinion, the examiner is asked to consider whether there is a medically sound basis to attribute in any way the Veteran’s allergic rhinitis and deviated septum to his dental disability. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Obtain a VA medical opinion for the Veteran’s tinnitus. If deemed necessary by the examiner, afford the Veteran a VA examination. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The claims folder must be provided to the examiner for review. The examiner should state in the examination report that the claims folder has been reviewed. *The examiner should opine as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s tinnitus is proximately due to or aggravated (beyond a natural progression) by his service-connected dental disability. *In rendering this opinion, the examiner is asked to consider whether there is a medically sound basis to attribute in any way the Veteran’s tinnitus to his dental disability. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Andersen, 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.