Citation Nr: 21064287 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 09-15 255A DATE: October 19, 2021 ORDER Entitlement to service connection for a torn TMJ meniscus is denied. Entitlement to service connection for Costen's syndrome, to include as secondary to a defective dental bridge, is denied. FINDINGS OF FACT 1. There is no current diagnosis of torn TMJ meniscus. 2. There is no current diagnosis of Costen's syndrome, to include as secondary to a defective dental bridge. CONCLUSIONS OF LAW 1. The criteria for service connection for a torn TMJ meniscus have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2020). 2. The criteria for service connection for Costen's syndrome, to include as secondary to a defective dental bridge have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1968 to June 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at Board hearings in October 2010, with a now retired Veterans Law Judge (VLJ), and in October 2016, before the undersigned VLJ, respectively. Transcripts of the hearings are of record. The Board remanded this matter in November 2019. The Board finds there has been substantial compliance with its November 2019 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) The Board notes that additional issues which were remanded by the Board in May 2021 remain in remand status and will not be addressed by the Board at this time. SERVICE CONNECTION In general, establishing service connection requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154 (a). In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Veteran is competent to provide facts about what he experienced; for example, he is competent to report that he engaged in certain activities in service and currently experiences certain symptomatology. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board acknowledges that it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan, 451 F.3d at 1337. However, such lack of contemporaneous evidence is for consideration in determining credibility. Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Entitlement to service connection for a torn TMJ meniscus and entitlement to service connection for Costen's syndrome, to include as secondary to a defective dental bridge The Veteran asserts that his torn TJM meniscus and Costen's syndrome are related to service. Alternatively, the Veteran asserts that his Costen's syndrome is secondary to a defective dental bridge. However, the Board finds that the weight of the evidence reflects that the Veteran does not have a current diagnosis of a torn TMJ meniscus or Costen's syndrome. There is no medical evidence of record that supports a current diagnosis of torn TMJ meniscus or Costen's syndrome despite the Veteran's assertions. The Board is cognizant of the recent holding in Saunders v. Wilkie, which stated that, where pain causes functional impairment, a disability for VA compensation purposes exists, even if there is no underlying diagnosis. Saunders v. Wilkie, No. 17-1466 (Fed. Cir. 2018). In Saunders, the United States Court of Appeals for the Federal Circuit essentially found that pain alone resulting in functional impairment is in fact a disability and should not be summarily discounted as a bar to benefits based on a finding of no current diagnosis. In this case regarding torn TMJ meniscus, however, after reviewing conflicting records and obtaining an MRI, a February 2021 VA examiner determined that the Veteran did not have and had never had the claimed condition. The examiner stated in a separate February 2021 VA opinion that there was no confirmation of a current injury to the meniscus. The examiner said that given the results of the MRI, it could be concluded that there was never any damage to the meniscus. The examiner reasoned that the meniscus appeared to be intact via current imaging. The lack of scar tissue, surgical clips, staples, or suturing proved that there was not a previous repair performed. There was insufficient evidence with history and physical exam to make a diagnosis of TMJ meniscus. In fact, the MRI results disproved this diagnosis and did not provide evidence of an alternative diagnosis or source of the Veteran's symptoms. Regarding Costen's syndrome, again, conflicting records were reviewed, and the October 2020 VA examiner stated that there was no evidence of Costen's syndrome diagnosis. The examiner stated that this syndrome was largely considered to be an antiquated diagnosis. The Board acknowledges that throughout the record, the Veteran has made subjective complaints of pain. However, there is no evidence throughout the record that the Veteran experiences any functional limitation or functional impact on ability to work due to his mouth pain. As such, the Veteran's disabilities do not amount to functional impairment of earning capacity, and Saunders is not applicable in this case. Absent evidence showing a current diagnosis, service connection for a torn TMJ meniscus or Costen's syndrome is not warranted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brown, Saudiee 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.