Citation Nr: 21069318 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 20-27 670 DATE: November 18, 2021 ORDER Entitlement to service connection for temporomandibular joint dysfunction (TMJ) is denied. REMAND Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT The evidence of record is against finding that the Veteran's TMJ occurred in, or is the result of, his period of active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for TMJ are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1962 to September 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2018 Rating Decision by a Department of Veterans Affairs (VA) Regional Office (RO). In a March 2021 Decision, the Board reopened these claims based on the submission of new and material evidence but remanded them so that (1) the Veteran could be afforded the opportunity to identify any outstanding private treatment records, (2) the agency of original jurisdiction (AOJ) could obtain any outstanding VA medical center (VAMC) records, and (3) so that new examinations and etiological opinions could be obtained. In March 2021, the AOJ sent to the Veteran a letter asking him to identify any outstanding private records (he did not), obtained outstanding VAMC records, and provided the Veteran with an updated examination and opinions. Thus, with respect to the TMJ issue, the Board finds that AOJ substantially has complied with the Board's prior instructions, permitting it to readjudicate this claim. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran argues that his TMJ is a direct result of being struck in the face with a cue ball while serving at Fort Dixon. July 8, 2015, VA TMJ Disability Benefits Questionnaire (DBQ). In the alternative, Counsel for the Veteran argues that the Veteran has experienced continuity of symptoms form that incident into the present, warranting presumptive service connection based on that continuity of symptomatology. See Nov. 17, 2020, Brief at 3. For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. § 1110. To establish service connection, there must exist 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. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); 38 C.F.R. § 3.303(a). In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 133537 (Fed. Cir. 2006). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Service treatment records (STRs) show that, in December 1965, the Veteran was struck in the left mandibular region with a cue ball. At the time, he complained that he was unable to bite down. There was pain and slight tenderness but no swelling. An x-ray was taken that day, but there are no findings listed. The September 1966 separation examination reveals clinically normal findings, and the corresponding report of medical history (RMH) by the Veteran does not mention the cue-ball incident. A July 2015 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran's complaints and medical history. The examiner indicated that the Veteran did not have a diagnosis of TMJ; however, the associated medical opinion states that there was a TMJ diagnosis but that it otherwise was not related to service. A September 2018 statement from the Veteran's private dental providerDr. G.states the following: [The Veteran was seen in my office on 9/6/18 to consult on a problem he is having with his occlusion and wearing dental prosthetics. He has a significant malocclusion and has a history of trauma to his left mandible/temporomandibular joint. I feel it is very possible the trauma (occurred 12/6/1965) to the left mandible caused the malocclusion and associated joint problems [the Veteran] is now experiencing. A November 2018 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran's complaints and medical history. The examiner indicated that the Veteran did not have a diagnosis of TMJ. That examiner stated that "Although the [V]eteran's records support that [his] trauma sustained is associated with intermittent symptoms of lockjaw and TMJ disorder to left jaw there is no objective evidence at this time to support a diagnosis for the claimed left jaw condition so no opinion to provide at this time." At an April 2020 Informal Hearing Conference (IHC), the Veteran asserted that he wears prosthetics that he believes are due to his in-service injury. The Veteran identified private treatment records that already were associated with the claims file and further confirmed that additional private treatment records, although outstanding, would not add anything to the Veteran's claim. The Veteran's representative at the IHC (someone other than Counsel listed on this Decision) declined time to obtain and submit these records. A November 2018 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran's complaints and medical history. This time, a diagnosis of TMJ was confirmed. In opining that it was not related to service, the examiner stated the following: C-file does not indicate a diagnosis of any TMJ conditions during service. Medical/Dental record in VBMS indicate an injury did occur but not of severity that any treatment was indicate at the time or in the future nor any symptoms were noted by the [V]eteran nor by Medical/Dental examiners from 12/13/1965 to 8/18/1966 on multiple visit and exams. Medical and Dental records note that on 12/6/1965 he was seen in the ED at McGuire AFB with CC: "Hit w Cue Ball left side of face unable to bite[,"] Physician note states" Patient struck over the mandibular Ramus last night w Cue ball. Claims pain on biting. Px no swelling, ecchymosis or deformity. Slight tenderness mandibular angle[."] Dental Record 12/13/1965, 12/20/65, 2/2/66, 2/3/66, 3/17/66, 5/9/66 and 8/18/66- documentation of treatment and exams there is no mention of any injury or jaw problems or discomfort. There was no treatment of any TMJ Dysfunction. Because that opinion did not respond to the September 2018 letter by Dr. G. (as required by the prior Board remand), the AOJ secured an addendum opinion, which stated: Veteran reported onset of jaw condition 1965. For the current subjective and objective abnormalities noted on exam a diagnosis of [TMJ] of the right and left side is warranted. STR reflect acute left face trauma 12/1965, without evidence for bone abnormality or missing teeth related to the trauma. It is noted STR lacks evidence to show trauma to the Right [temporomandibular] joint during active duty. Remainder of STR show 7 dental visits for treatment without mention of a [temporomandibular] complaint or diagnosis, with additional medical appts. for other conditions during 1965/1966 without . . . mention of a [temporomandibular] complaint or diagnosis. It is noted on Separation exam 8/18/1966 "Denies all other significant medi[c]al and surgical history." [Temporomandibular] exam by Dr. Richard Lynch, 7/2015 noted no [temporomandibular] diagnosis on exam with right and left joint abnormalities, with noted "Malocclusion and Lack stable occlusion resulting in over closure and advancement of the condyle to an improper position Patient missing teeth and ill fitting prosthesis are contributory factors." and "Patient has malocclusion due to missing teeth. As he closes his jaw, the mandible protrudes into a protrusive class 3 relationship that causes the condyle of the mandible to move forward. The examiner [cannot] determine if clicking is cause from over and improper closure or trauma to TMJ[."] Dr. Harold Goforth opined in favor of Veteran 9/6/2018 and noted significant malocclusion and history of trauma, but does not reflect any review of medical records or account for any skeletal or dental hereditary factors of jaw size/tooth size, or tooth alignment in the issue of malocclusion for the condition he described. [Temporomandibular] exam by Dr. David Amos 11/15/2018, noted Veteran subjective conditions with no objective evident at time of exam to warrant a [temporomandibular] diagnosis. Although the claims file does show current abnormalities of the right and left [temporomandibular] joint, available claims file does not show a chronic left [temporomandibular] diagnosis at the time of separation or in the years proximal to separation, therefore the Left [temporomandibular] facial trauma is considered acute and revolved during active duty. There is a significant . . . 45+ year gap to noted abnormalities which are shown for both the right and left [temporomandibular] joints. As there is no evidence for a right TMJ or facial trauma during active duty the left [temporomandibular] abnormalities are more likely to be normal progression of aging or other dental conditions of malocclusion and missing teeth noted on historic dental examinations that are not related to military service and less likely than not (less than 50 percent probability) had its onset during active service or is otherwise related to active service, including the documented in-service left facial trauma. A nexus has not been established for the current Right or Left [TMJ] to active military service or left facial trauma during service. The Board is satisfied that the Veteran currently has a left TMJ diagnosis and acknowledges that he was struck in the left mandible during service. Thus, the first two elements of service connection have been established. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). As to the third element, the Board finds that the evidence of record is insufficient. There are four medical opinions of record. The July 2015 opinion, due to its internal inconsistencies, will be afforded no probative value. That leaves the opinions of Dr. G. and the June and August 2021 VA opinions. All three will be discussed. Dr. G.'s opinion adds little to the Veteran's claim. He states only that it is "very possible" that the Veteran's in-service injury and current condition is related. That is the beginning and end of his analysis/rationale, and it contains almost none of the hallmark signs of an adequate opinion. See McCray v. Wilkie, 31 Vet. App. 243, 257 (2019) (noting various factor to consider for adequacy in a medical opinion: personal examination of the patient; the expert's knowledge and skill in analyzing the data; whether the opinion contains clear conclusions with supporting data and a reasoned medical explanation connecting the two; whether the opinion is clear and susceptible of only one meaning; the expert's familiarity with pertinent medical history; whether there is any inconsistency in the expert's statements; whether the expert has provided a thorough and detailed opinion about an area within his or her expertise; whether the expert has provided factually accurate, fully articulated, and sound reasoning for his or her conclusion; whether the expert relied on sufficient facts or data; whether the opinion is the product of reliable principles and methods; and whether the opinion is the result of principles and methods reliably applied to facts). This opinion also does not speak in the terms necessary to award service connection. "Very possible," is an exceptionally ambiguous, subjective phrase. Possible simply means "being within the limits of ability, capacity, or realization"; "being something that may or may not occur"; "being something that may or may not be true or actual"; "having an indicated potential." Possible, Merriam-Webster's Collegiate Dictionary (11th ed. 2003). Very means "to a high degree." Very, id. But even acknowledging that it is Dr. G.'s opinion that there is a high degree of connection between the Veteran's condition and in-service injury, it does not tell the Board whether it rises to the level of "at least as likely as not"the legal standard required in this case. The percentage that one individual considers very possible may be improbable to another. To Dr. G., does "very possible" equate to a 30 percent likelihood? A 40 percent? He does not say, and the Board cannot presume to know. Thus, for these reasons, the Board affords Dr. G.'s opinion little probative value on appeal. Together, the two remaining VA opinions provide the Board with a well-reasoned medical opinion for adjudication purposes. They recount the Veteran's in-service dental treatment, noting that, after the in-service injury, there were no complaints of any mandibular conditions or diagnosis of TMJ, especially at the time of separation, and throughout his remaining in-service dental visits. The August 2021 addendum goes into detail, discussing the November 2018 examiner's findings and reporting on the Veteran's current condition, to include how the Veteran's jaw size and tooth size have contributed to the need to wear prosthetics. It is those factors, in combination with the natural aging process that led the August 2021 examiner to believe that the Veteran's current condition is not related to service. Furthermore, that examiner criticized Dr. G. for the same reasons that the Board is not persuaded by his opinion, i.e., that there is no indication that he reviewed any other medical records to support his blanket conclusion. See id. Thus, the Board affords the June and August 2021 VA opinions considerable probative value on appeal. While the Veteran and Counsel sincerely may believe that the Veteran's current condition is related to service, neither are competent to render that complex medical opinion. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). Counsel also argues that the Veteran should be awarded service connection for his TMJ based on a theory of continuity of symptomatology, which, she alleges requires "(1) that a condition was 'noted' during service; (2) there is post service evidence of the same symptomatology; and (3) there is a medical or, in certain circumstances, lay evidence of a nexus between the present disability, and the post service symptomatology. Brief at 3 (citing Savage v. Gober, 10 Vet. App. 488 (1997)). Counsel's argument, however, is misplaced. Presumptive service connection for continuity of symptomatology is available only for the chronic conditions articulated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013) ("[W]e conclude that properly interpreted, and consistent with the Secretary's interpretation, § 3.303(b) is constrained by § 3.309(a) . . . in that [§ 3.303(b)] is only available to establish service connection for the specific chronic diseases listed in § 3.309(a)." (Footnote omitted)). Because TMJ is not a chronic condition for which a presumption of service connection exists, Counsel's argument on this point fails. See 38 C.F.R. §§ 3.303(b), 3.309(a). Because the evidence of record does not support the Veteran's claim for entitlement to service connection for TMJ, his appeal is denied. The Board is unable to find an approximate balance of the positive and negative evidence submitted to warrant for the Veteran a favorable decision. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53; 38 C.F.R. §§ 3.102, 3.303(a). REASONS FOR REMAND As to his bilateral hearing loss, the Veteran contends that his military occupation of a Water and Waste Processing Specialist subjected him to a high level of hazardous noise exposure, which caused his hearing loss; in the alternative, he argues that the cue-ball incident also is responsible for his hearing loss. Brief at 1. Counsel argued that the November 2018 VA audiological opinion was inadequate because it failed to respond to medical literature that noise-induced hearing loss can occur years after the noise exposure and need not be contemporaneous. Counsel cited to the following website link: https://www.cincinnati.com/story/sponsor-story/uc-health/2016/08/01/uc-health-hearing-noise-decibels-tinnitus/87605724/. Brief at 2. While the Board's March 2021 Decision instructed the AOJ to obtain a medical opinion that responded to Dr. B.'s (another private provider of the Veteran) medical opinion regarding the Veteran's hearing loss, it failed to ensure that the examiner referenced Counsel's cited medical literature. In this vein, the opinion is inadequate as it does not respond to one of the Veteran's clearly articulated theories of entitlement, requiring remand for an additional addendum opinion. See Robinson, 21 Vet. App. at 552. The matters are REMANDED for the following action: 1. Obtain any ongoing VA treatment records. Should they exist, associate them with the claims file. 2. Obtain an addendum to the May 2021 VA audiological opinion. The addendum shall answer the following: Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's bilateral hearing loss occurred in, or is the result of, his period of active duty service, to include working as a Water and Waste Processing Specialist? In answering this question, the examiner specifically must address the Veteran's purported theory that noise-induced hearing loss can occurs year after hazardous noise exposure by discussing this article: https://www.cincinnati.com/story/sponsor-story/uc-health/2016/08/01/uc-health-hearing-noise-decibels-tinnitus/87605724/. Note: The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. A detailed rationale supporting the examiner's opinions must be provided. The lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 3. Conduct any other development deemed necessary and then readjudicate the Veteran's claim. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or United States Court of Appeals for Veterans Claims must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, Associate 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.