Citation Nr: 21068258 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 17-37 413 DATE: November 9, 2021 ORDER Entitlement to service connection for fractured jaw is denied. REMANDED Entitlement to service connection for prostate cancer is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for bruxism is remanded. Entitlement to service connection for a disability of the jaw other than jaw fracture and bruxism, to include temporomandibular joint (TMJ) dysfunction and osteoarthritis of the left TMJ, is remanded. The petition to reopen the previously denied claim for entitlement to service connection for a neck condition is remanded. The petition to reopen the previously denied claim for entitlement to service connection for headaches is remanded. The petition to reopen the previously denied claim for entitlement to service connection for a sleep disorder is remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had residuals of a fractured jaw at any time during or proximate to the pendency of the claim. CONCLUSION OF LAW The criteria for entitlement to service connection for a fractured jaw have not been met. 38 U.S.C. §§ 1110, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1968 to January 1970 and from November 1990 to September 1991 with additional service in the Army National Guard. In March 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board remanded this case in June 2020. As relevant to the issue denied in this decision, the remand directed the Agency of Original Jurisdiction (AOJ) to obtain the Veteran's updated VA treatment records, obtain the Veteran's Social Security Administration records, and provide the Veteran a VA examination as to his claimed jaw fracture. Pursuant to the remand, the AOJ obtained the Veteran's updated VA treatment records, made an appropriate attempt to obtain the Veteran's Social Security Administration records, and afforded the Veteran a VA examination as to his claimed jaw fracture in June 2021 that provided the information required to render a decision as to that claim. Regarding the Veteran's Social Security Administration records, in August 2020, the Social Security Administration informed VA that no such records could be provided because no such records exist. Accordingly, the Board finds that VA at least substantially complied with the June 2020 remand. See 38 U.S.C. § 5103A(b); Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In the June 2020 remand, the Board also noted that a review of the Veterans Appeals Control and Locator System (VACOLS) revealed that in January 2011 the Veteran withdrew an appeal as to a finding that a February 2009 substantive appeal was not timely, but that the communication requesting that withdrawal was not of record. The Board therefore directed the AOJ to associate a copy of the January 2011 withdrawal with the record. On remand, the AOJ completed that directive in October 2020 by associating with the record correspondence from the Veteran's representative dated in January 2011 requesting withdrawal of the "appeal concerning timely submittal". The withdrawal occurred prior to activation of the appeal at the Board. Therefore, no further action need to be taken on that appeal, and the Board finds that VA at least substantially complied with June 2020 remand directives as to the January 2011 withdrawal. See 38 U.S.C. § 5103A(b); Stegall, 11 Vet. App. at 271; D'Aries, 22 Vet. App. at 105. Finally, the June 2020 remand also included the issues of entitlement to service connection for depression with anxiety and entitlement to service connection for joint pain. A June 2021 rating decision granted the Veteran entitlement to service connection for other specified schizophrenia spectrum and other psychotic disorder (claimed as bipolar, depression, and anxiety), entitlement to service connection for left knee osteoarthritis, and entitlement to service connection for right knee strain. A review of the record reveals that the claim for entitlement to service connection for joint pains was in relation to the Veteran's knees. Accordingly, the June 2021 grant of service connection for bilateral knee disabilities was in response to and a full grant of that claim. Therefore, the actions taken in the June 2021 rating decision represent a total grant of the benefits sought on appeal with respect to those issue, and the issues no longer on appeal. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issue denied in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In that regard, the Board notes that the development directed in the Remand section below pertains to the remanded issues, and there is no indication that evidence developed as part of those actions may be relevant to the issues denied in this decision. The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issue denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in the decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Service Connection 1. Entitlement to service connection for a fractured jaw The Veteran seeks entitlement to service connection for a fractured jaw. He has stated that he injured his jaw in 1969 or during the 1970s when he fell off a truck or a tank. At the March 2020 Board hearing, he testified that he fell off a tank and fractured his jaw "back in 80s". He did not seek medical assistance at the time and has not ever sought medical care for the condition. He has had a crackling sound in the mouth ever since. He further testified that his teeth rotted after he returned from Desert Storm. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of section 1110 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have any current residuals of a jaw fracture and has not had such a disability at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The June 2021 VA examiner evaluated the Veteran and diagnosed him with periodontal disease, TMJ dysfunction, and osteoarthritis of the left TMJ. He determined that recent radiographic imaging completed in January 2021 notes no obvious signs of fracture. The report for the January 2021 radiographic imaging is of record and shows findings of "No acute fracture is identified", limited opening of the left TMJ, and osteoarthritis of the left TMJ. There is no diagnosis of a jaw fracture or residuals of a jaw fracture in the medical treatment records. Thus, there is no competent medical evidence of record showing that the Veteran has had bruxism or residuals of a fractured jaw at any time during or proximate to the pendency of the claim. Moreover, the June 2021 VA examiner found no evidence of such conditions, and therefore did not provide diagnoses for such conditions. Although the Veteran believes that he fractured his jaw during service and that he continues to have symptoms from that fracture, to include bruxism, he is not considered competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and knowledge of conditions of the teeth and jaw and the ability to interpret complicated diagnostic medical testing regarding such conditions. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In addition, the competent evidence of record, to include the January 2021 radiographic imaging that did not show a fracture of the jaw, contradicts his statements. Consequently, his statements are not probative in showing that he currently has residuals of a jaw fracture. The Board notes that replaceable missing teeth, treatable carious teeth, dental or alveolar abscesses, and periodontal disease are not compensable disabilities. 38 C.F.R. § 3.381(b). Therefore, the periodontal disease diagnosed by the June 2021 VA examiner is not a disability for which service connection may be granted. Accordingly, the competent medical evidence of record does not show that the Veteran has had residuals of a fractured jaw at any time during or proximate to the pendency of the claim. As noted above, in the absence of proof of a current disability, there can be no valid claim for entitlement to service connection. Brammer, 3 Vet. App. at 225. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for a jaw fracture. Because the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for prostate cancer is remanded. The Veteran had active service during the Vietnam era. He has stated that he had service in Vietnam. His DD Form 214 for his first period of active service shows that he was in the U. S. Navy, that he had one year and four months of foreign and/or sea service, and that he last served aboard the U.S.S. America. The Veteran's full service personnel records from that period are not of record. Therefore, it is unclear whether the Veteran had in-country service in the Republic of Vietnam or may have had service on a ship that entered the territorial seaswithin 12 nautical miles from shoreof the Republic of Vietnam. See Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). The issue must be remanded so that the Veteran's service personnel records for his first period of active service may be obtained and so that efforts may be made to verify the Veteran's exposure to herbicide agents, if warranted. The Veteran has also asserted that he was exposed to radiation from explosions while he was in the Persian Gulf. His DD Form 214 for his second period of active service confirms that he had service in Southwest Asia from January 1991 to August 1991. Because the Veteran has a radiogenic disease that manifested during the applicable time period found in 38 C.F.R. § 3.311(b)(5), a radiation dose assessment must be obtained. See 38 C.F.R. § 3.311(a)(1). In this case, the Veteran has not alleged, and the record does not show, that he participated in atmospheric nuclear weapons testing. See 38 C.F.R. § 3.311(a)(2)(i). Therefore, the Veteran's claim is considered an "other exposure claim" and, on remand, should be forwarded to the Under Secretary for Health for preparation of a dose estimate. 38 C.F.R. § 3.311(a)(2)(iii). If the resulting dose estimate is greater than zero, the claim must then be referred to the Under Secretary for Benefits for further consideration under 38 C.F.R. § 3.311(c). 2. Entitlement to service connection for hypertension is remanded. The Veteran seeks entitlement to service connection for hypertension. A remand is required to obtain a medical opinion as to whether the Veteran's hypertension may be a cardiovascular sign or symptom of an undiagnosed illness or medically unexplained chronic multisymptom illness related to the Veteran's service in the Persian Gulf. See 38 C.F.R. § 3.317. In addition, if it is confirmed that the Veteran had in-country service in the Republic of Vietnam, had service within the territorial seas of the Republic of Vietnam, or was otherwise exposed to herbicide agents during his active service, then an opinion should also be obtained as to whether the Veteran's hypertension is etiologically related to in-service exposure to herbicide agents. 3. Entitlement to service connection for bruxism is remanded. 4. Entitlement to service connection for a disability of the jaw other than jaw fracture, to include TMJ dysfunction and osteoarthritis of the left TMJ, is remanded. The Veteran contends that he has bruxism and a disability of the jaw that are due to an injury that occurred during his service with the Army National Guard. Efforts to obtain the Veteran's service treatment records from the Army National Guard have not been made. A remand is required so that such efforts may be made. In addition, the June 2021 VA examiner provided contradictory information as to whether the Veteran currently has bruxism. He also did not provide an adequate rationale for opining that the Veteran's TMJ dysfunction and osteoarthritis of the left TMJ are less likely than not due to his active service. Specifically, in June 2021, the examiner stated, "The claimed condition of bruxism is unable to be confirmed. No clinical signs of bruxism during examination. Review of medical records notes no diagnosis of bruxism prior to or during service." However, in a July 2021 addendum, he stated, "The Veteran's history of facial trauma may have contributed to his TMJ issues, but osteoarthritis incidence is increased by other risk factors. The claimant does present with risk factor of bruxism, which may contribute to his osteoarthritis of the Left TMJ." He concludes, "I am unable to determine with certainty that his history of facial trauma is the sole cause of TMJ issues." The law does not require that there be certainty regarding service origin. Rather, it requires only that there be an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. See 38 C.F.R. § 3.102. In addition, the Veteran's reported in-service injury need not be the sole cause of his current TMJ issues for service connection to be warranted. Furthermore, the examiner's finding that the Veteran's reported in-service injury "may have contributed" to his current disability is vague and equivocal. Given the inconsistent statements and inadequate rationale in the opinions, the issues must also be remanded so that a further addendum opinion may be obtained. 5. The petition to reopen the previously denied claim for entitlement to service connection for a neck condition is remanded. 6. The petition to reopen the previously denied claim for entitlement to service connection for headaches is remanded. 7. The petition to reopen the previously denied claim for entitlement to service connection for a sleep disorder is remanded. The service personnel records and service treatment records requested on remanded in relation to the issues discussed above may be relevant to the petitions to reopen the previously denied claims for entitlement to service connection for a neck condition, headaches, and a sleep disorder. Therefore, those issues must also be remanded. The matters are REMANDED for the following action: 1. Obtain the Veteran's complete service treatment records for his service in the Army National Guard, to include the Hawaii Army National Guard. Document all requests for information as well as all responses in the claims file. 2. Obtain the Veteran's complete service personnel records for his first period of active service from May 1968 to January 1970. Document all requests for information as well as all responses in the claims file. 3. If the service personnel records for the Veteran's first period of active service do not show in-country service in the Republic of Vietnam, then perform the development necessary to verify whether the U.S.S. America and any other United States Navy ship the Veteran served on traveled within 12 nautical miles of the Republic of Vietnam while the Veteran was stationed on them. To the extent that any request for information requires a specified limited time period, such as a 60-day period, submit multiple requests to cover the entire periods the Veteran served aboard the U.S.S. America and any other United States Navy ship shown in the service personnel records. See Gagne v. McDonald, 27 Vet. App. 397, 404 (2015). 4. Forward the case to the Under Secretary for Health for preparation of an ionizing radiation dose estimate in accordance with 38 C.F.R. § 3.311(a)(1) and (a)(2)(iii). If the resulting dose estimate is greater than zero, the claim must then be referred to the Under Secretary for Benefits for further consideration under 38 C.F.R. § 3.311(c). In such a case, an opinion should be provided as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's prostate cancer is related to his active service, including in-service exposure to ionizing radiation. The opinion should be based on the dose estimate provided by the Under Secretary for Health, and should be supported with appropriate rationale. 5. Obtain an addendum opinion from an appropriate clinician as to the Veteran's claimed hypertension. The examiner is asked to provide responses to the following: (a.) Is the etiology of the Veteran's hypertension (1) inconclusive, (2) partially understood, or (3) fully understood? This determination must be based on the Veteran's specific case and cannot be based on the etiology of the disease or disability population as a whole. (b.) Is the pathophysiology of the Veteran's hypertension (1) inconclusive, (2) partially understood, or (3) fully understood? This determination must be based on the Veteran's specific case and cannot be based on the pathophysiology of the disease or disability population as a whole. (c.) If both the etiology and pathophysiology are partially understood or fully understood and it is determined that the Veteran was exposed to herbicide agents during his first period of active service, then is it at least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension is etiologically related to the in-service exposure to herbicide agents? In providing this opinion, the clinician must discuss the National Academy of Sciences Institute of Medicine's most recent conclusions regarding hypertension and herbicides. Specifically, the National Academy of Sciences Institute of Medicine's Veterans and Agent Orange: Update 2010, concluded that there is "limited or suggestive" evidence of an association between exposure to herbicide agents and hypertension. However, in November 2018, the National Academy of Sciences moved hypertension to the category of "sufficient" evidence of an association from its previous classification in the "limited or suggestive" category. A complete rationale must be provided for all opinions expressed. 6. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's claimed bruxism and disabilities of the jaw other than jaw fracture, to include TMJ dysfunction and osteoarthritis of the left TMJ. The examiner is asked to provide responses to the following: (a.) Does the Veteran currently have a diagnosis of bruxism or did he have such a diagnosis at any point since approximately August 2010? (b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's TMJ dysfunction, osteoarthritis of the left TMJ, and/or bruxism (if diagnosed) is related to an in-service event, injury, or disease? For purposes of providing this opinion, the examiner must assume the Veteran credible in his reports that he fell off of a truck or tank during a period of active service despite the lack of contemporaneous medical record documenting such an injury, unless there are other factors indicating that the Veteran is not credible in his report. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible). The "at least as likely as not" standard speaks to the concept of reasonable doubt. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. It is not a means of reconciling actual conflict or a contradiction in the evidence. Mere suspicion or doubt as to the truth of any statements submitted, as distinguished from impeachment or contradiction by evidence or known facts, is not justifiable basis for denying the application of the reasonable doubt doctrine if the entire, complete record otherwise warrants invoking this doctrine. See 38 C.F.R. § 3.102. Therefore, the reported in-service injury need not be the sole cause of the current disabilities. In addition, the actual cause of the current disabilities need not be determined with complete certainty. On the other hand, a finding that the in-service injury may have contributed to or caused the current disabilities is insufficiently vague and equivocal. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. J. Anthony, 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.