Citation Nr: 21004749 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 16-33 162 DATE: January 28, 2021 ORDER Service connection for a jaw condition is denied. REMANDED Entitlement to service connection for a bilateral foot condition is remanded. FINDING OF FACT A disease or injury of the jaw was not incurred or aggravated in active service. CONCLUSION OF LAW The criteria for service connection for a jaw condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1963 to March 1964. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Minnesota. The Board remanded the matters for further development in January 2020. The Veteran testified at a hearing before the undersigned Veterans Law Judge in March 2019. A transcript of the hearing is of record. Service connection for the Veteran’s bilateral foot condition was originally denied in an October 1966 decision. It was then administratively denied in a March 1988 decision based on a finding that new and material evidence had not been submitted to reopen the claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Under VA’s legacy appeal system, which applies here, a determination on a claim by the agency of original jurisdiction of which the claimant is properly notified is final if no notice of disagreement is filed within the prescribed time period, or an appeal is not perfected pursuant to 38 C.F.R. § 20.302. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103; see 38 C.F.R. §§ 20.200, 20.201, 20.302 (setting forth requirements and timeframe for initiating and perfecting an appeal under VA’s legacy appeal system). As the Veteran did not appeal the October 1966 and March 1988 decisions, or submit or identify new and material evidence during the respective appeal periods, these decisions are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103; see also 38 C.F.R. § 3.156(b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009). Under 38 C.F.R. § 3.156(c), if at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. An award based all or in part on such records is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later. 38 C.F.R. §§ 3.156 (c)(3). However, such records do not include records that VA could not have obtained when it previously decided the claim because the records did not exist at the time or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the appropriate official source. 38 C.F.R. § 3.156 (c)(2). Here, pursuant to the Board’s January 2020 remand, additional service treatment records reflecting treatment for the Veteran’s left foot were recently obtained, in January 2020, from the National Personnel Records Center. There is no indication that VA could not have obtained these records previously; clearly, they existed at the time of the October 1966 rating decision, and the ability to obtain these records was not based on new information that the Veteran had not previously furnished. Accordingly, reconsideration of the claim under § 3.156(c) is warranted. Service Connection Service connection generally will be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection on a direct basis, the evidence must show: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link between the current disability and the disease or injury incurred or aggravated in service (the “nexus” element). Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (when the evidence supports the claim or is in relative equipoise, the claim will be granted). Service connection for a jaw condition. The Veteran seeks to establish service connection for a jaw condition. In this regard, he states that he was punched in the mouth by another service member. See March 2019 Hearing Transcript. He testified that he could barely open his mouth to eat, and was treated at sick bay. See id. When asked if he continued to have problems with his jaw after that incident, he responded that for several years he “could not take a bite out of a cheeseburger or hamburger” or “open [his] mouth that far.” He stated that his jaw still locks when he yawns. In a May 2016 statement (VA Form 21-4138), the Veteran’s half-brother wrote that the Veteran complained of chronic jaw locking upon his return from service. For the following reasons, the Board finds that service connection for a jaw condition is not established. The credible evidence does not show that the Veteran sustained an injury to his jaw or had jaw problems during active service. The service treatment records show complaints for a number of conditions, including with regard to his left foot, a sore throat, congestion, and an upset stomach. They also show a February 1964 entry reflecting a complaint of an infectious sore on the upper gum of his mouth, noting that the Veteran had had a cut for two days. There is no mention of an injury to the mouth sustained by being hit by another service member, or of any problems with his jaw or difficulty opening his mouth to eat. The March 1964 discharge examination report reflects that the Veteran’s mouth and throat were clinically evaluated as normal. The Board has considered the Veteran’s testimony that he was punched in the mouth during service and experienced difficulty opening his mouth and eating thereafter. See March 2019 Hearing Transcript. The Board finds his testimony lacks credibility, and is not sufficient to establish service incurrence of an injury to the jaw. In this regard, there must be a proper foundation to draw adverse inferences against the credibility of testimony from silence in the record. Fountain v. McDonald, 27 Vet. App. 258, 272 (2015); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). Such a foundation may be established by finding that the fact being claimed would ordinarily have been recorded in the available records had it occurred. Id. The Board may not rely on an absence of treatment without explaining “why the appellant would reasonably have been expected to report his symptoms to medical providers.” Fountain, 27. Vet. App. at 273. The Board must also consider whether it is qualified to make that determination, or whether independent medical evidence is required. See Kahana v. Shinseki, 24 Vet. App. 428, 434-35 (2011) (holding that the Board improperly found that a claimed injury would have been documented at the time, as there was no independent medical evidence to support that determination.) In this case, the Board finds it implausible that the Veteran received treatment during service for difficulty opening his jaw that was not documented or recorded. The service treatment records appear complete, and show treatment for other conditions, including a mouth sore apparently associated with a cut, as discussed above. Thus, there is sufficient evidence to conclude that had the Veteran been treated for difficulty opening his mouth due to a jaw condition—as he states he was—that complaint would have been documented in the service treatment records. It is possible that the cut on his mouth noted in the February 1964 entry was due to being hit by another service member, but the fact that no mention is made of difficulty opening his mouth indicates that this was not a symptom at the time. It is implausible that the rather significant symptom of not being able to open his mouth sufficiently to eat would have remained unrecorded in this entry, if the Veteran reported that symptom. Similarly, the Board does not find it plausible that the Veteran would not have reported that symptom, when he reported other, less significant symptoms such as a sore on his mouth. The Veteran does not state that he declined to seek treatment for his jaw condition; rather, he testified that he sought treatment the same day as the injury because he could not open his mouth to eat. See March 2019 Hearing Transcript. Under these circumstances, independent medical evidence is not required for the Board to determine that the jaw condition for which the Veteran states he sought treatment would ordinarily have been recorded in the service treatment records, when they document treatment and complaints of a number of other conditions, including a sore on his mouth. Therefore, the fact that the service treatment records are negative for findings or complaints of a jaw condition weighs against the credibility of the Veteran’s testimony. See Fountain, 27 Vet. App. at 272. The Board notes that in June 1966, the Veteran applied for dental treatment at VA, stating that his teeth had been drilled out during active service, but he never received permanent fillings. He also claimed service connection for a bilateral foot condition. He did not file a claim for a jaw condition, or mention his jaw at this time. Based on this claim, and his March 2019 hearing testimony that he had difficulty opening his mouth to eat ever since he was hit by another service member in active service, the Board finds it implausible he would not have mentioned his jaw at the time he filed this claim. The Board also notes that as the Veteran’s reported jaw injury did not occur under combat conditions, there is no presumption of credibility with respect to his symptoms. See 38 U.S.C. § 1154(b) (providing that when an injury is incurred in combat, satisfactory lay or other evidence will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation); 38 C.F.R. § 3.304(d); Collette v. Brown, 82 F.3d 389, 393 (Fed. Cir. 1996). If the Board were bound to accept as “sufficient proof” the Veteran’s statements solely because they were not contradicted by affirmative evidence to the contrary, or because the Board could not draw an adverse inference against the credibility of his testimony from silence in the record when he states he did seek treatment and when the service treatment records document a number of medical complaints, the combat presumption would be essentially superfluous. The May 2016 statement by the Veteran’s half-brother that the Veteran complained of chronic jaw locking upon his return from service is not sufficient to overcome the above evidence weighing against the credibility of the Veteran’s statements. The statements by the Veteran and his half-brother, standing alone, proffered in support of a claim for benefits, and without any supporting contemporaneous evidence, are simply not sufficient to establish an in-service injury to the jaw or jaw locking ever since service. Because the evidence does not establish an in-service disease, injury, or event relevant to a jaw condition, a VA examination or opinion is not warranted. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); 38 C.F.R. § 3.159(c). In the absence of service incurrence or aggravation of an injury or disease with respect to the Veteran’s jaw, the criteria for service connection are not satisfied. See Holton, 557 F.3d at 1366. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for a bilateral foot condition is remanded. The Board previously remanded the claim for a bilateral foot condition, in part, for a VA examination and a new medical opinion. As discussed in the Board’s January 2020 remand, the service treatment records show that the Veteran had a pre-existing foot condition. However, no foot abnormalities were noted at entry. Therefore, the presumption of sound condition applies. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). That presumption may only be rebutted by clear and unmistakable (obvious or manifest) evidence both (1) that the disease or injury existed prior to service and (2) that the disease or injury was not aggravated by service. 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The Veteran states, in part, that the rigors of prolonged marching and training aggravated his pre-existing foot condition. The service treatment records document complaints of foot pain, and he was discharged on medical grounds due to his foot condition. The Board finds that the January 2020 VA medical opinion is not adequate to make an informed decision. In the opinion, the examiner found it “unlikely” that the time the Veteran spent in service was long enough to have aggravated his foot condition beyond its normal course. The examiner added that given the severity of the Veteran’s pre-existing foot condition, he would have experienced these symptoms regardless of his service. The reasoning in the medical opinion does not comport with the proper evidentiary standard, and does not address the questions presented to the examiner or the pertinent evidence in the file. More specifically, the proper evidentiary standard is not whether it is likely or unlikely that the Veteran’s foot condition was aggravated in service, but whether the clear and unmistakable evidence shows it was not aggravated by service. See Wagner, 370 F.3d at 1096. The examiner did not make that finding, but instead used the word “unlikely.” Moreover, the examiner did not address the Veteran’s foot complaints in service following physical training, or the issue of whether such training, including prolonged marching, aggravated his foot condition, irrespective of the amount of time the Veteran served. In this regard, he participated in training for several months. He states he began experiencing foot symptoms during a 14-mile march. See March 2019 Hearing Transcript. Accordingly, a new VA medical opinion must be obtained. As this claim must be remanded for the above reasons, the Veteran should be provided another opportunity to submit or authorize the release of his private treatment records from Pana Medical Group. See January 2020 Board Remand. The matter is REMANDED for the following action: 1. Provide the Veteran another opportunity to authorize the release of his private treatment records from Pana Medical Group; Dr. Hess; R.B. Siegert, M.D., in Pana, Illinois; and the foot specialist in Decatur, Illinois, to whom he was referred by Pana Medical Group. He should also be invited to submit these records himself. 2. Obtain a new VA medical opinion regarding service connection for the Veteran’s bilateral foot condition, as specified below. The opinion should be from a medical professional who has not previously provided an opinion in this case. The examiner is asked to provide an opinion as to whether there is clear and unmistakable evidence (obvious or manifest) that the Veteran’s burn scars on the dorsum of the left foot with dorsal contracture of the 2nd through 5th toes, and burns scars on the dorsum of the right foot, existed prior to service. If the examiner answers in the affirmative, the examiner should provide an opinion as to whether the clear and unmistakable evidence shows that the pre-existing disease or injury was not aggravated in service. In providing this opinion, the examiner must consider the following: • The complaints and findings in the service treatment records concerning the Veteran’s feet, to include the Medical Board evaluation in February 1964 in which he reported that he had recovered well from his original injury and had only occasional pains in his left foot, but now experienced constant pain in the ball of the left foot, aggravated by marching or standing; and the orthopedic consultation in January 1964 in which it was noted that the Veteran actively contracted the left toe extensors accentuating the cock up deformities which further depressed and applied pressure to the metatarsal heads thereby contributing to the development of the painful calluses under the metatarsal heads, and that he had a predisposing condition on the right foot to the same problem developing; • The rigors of in-service training, to include forced road marches and running; and • The post-service June 1966 report of examination noting that the Veteran had experienced pain in his left foot at intervals for two years, i.e., since his separation from service. The examiner should also opine as to whether it is at least as likely as not (i.e., 50% or greater probability) that any current foot disorder, including hammer toes of the second toes, bilaterally; calluses; plantar keratosis sub 5th metatarsal head on the left foot; and hallux valgus, minimal joint space narrowing of the 1st metatarsophalangeal joint, and minimal calcaneal spurring of the left foot, had its clinical onset during service or is related to any incident of service. In providing this opinion, the examiner must consider the following: • The complaints and findings in the service treatment records concerning the Veteran’s feet, to include the Orthopedic consultation in January 1964 in which it was noted that the Veteran actively contracted the left toe extensors accentuating the cock up deformities which further depressed and applied pressure to the metatarsal heads thereby contributing to the development of the painful calluses under the metatarsal heads, and that he had a predisposing condition on the right foot to the same problem developing; • The rigors of in-service training, to include forced road marches and running; and • The post-service June 1966 report of examination noting that the Veteran had experienced pain in his left foot at intervals for two years, i.e., since his separation from service. A complete rationale must be provided for all opinions and conclusions reached. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.