Citation Nr: 21077256 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 16-62 042 DATE: December 29, 2021 ORDER Entitlement to service connection for a dental disability, to include residuals of mandible surgery, is denied. FINDINGS OF FACT 1. The Veteran entered active service with a congenital condition of stage II perracipital fibrous dysplasia and facial asymmetry, that constituted a defect or abnormality, and was not a disease process. 2. The Veteran underwent remedial orthognathic surgery to correct his congenital condition, resulting in facial numbness. 3. The evidence of record supports a finding that the Veteran's in-service dental treatment did not aggravate his condition. 4. The Veteran's facial numbness neither constitutes a resultant disability nor a superimposed disease/injury from the dental treatment he received in service for his congenital defect. CONCLUSION OF LAW The criteria for establishing service connection for a dental disorder, to include residuals of mandible surgery, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a), 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from January 1973 to October 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed his Substantive Appeal via a VA Form 9 in December 2016. In January 2020 and June 2021, the appeal was remanded to the RO for additional action due to inadequate VA examinations. The matter is once again before the Board for appellate consideration of the issue on appeal. The Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus, specifically, on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent, credible evidence of (1) the existence of a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus, or link, between the current disability and disease or injury incurred in or aggravated during service. See, e.g., Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C. §§ 1111; 38 C.F.R. § 3.304(b). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). If a condition is not noted upon entrance into service, then to rebut the presumption of soundness at service entrance, VA must establish by clear and unmistakable evidence that there was a pre-existing condition and that it was not aggravated during or by the Veteran's service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003). With respect to this second part of the presumption of soundness, VA must establish by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was "due to the natural progression" of the preexisting condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). If a preexisting condition is noted upon entry into service, then the Veteran cannot bring a claim for service connection for that disability; rather, the claim is one for service-connected aggravation of that preexisting condition. In that case, 38 U.S.C. § 1153 applies and the burden falls on the Veteran, not VA, to establish aggravation. Wagner, 370 F.3d at 1096; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994); 38 C.F.R. § 3.306. Concerning conditions that are of congenital, developmental, or hereditary origin, VA General Counsel Opinions have made a distinction between congenital, developmental or hereditary "defects," for which service connection is precluded by regulation, and congenital, developmental or hereditary "diseases," for which service connection may be granted, if initially manifested in or aggravated by service. See VAOPGCPREC 82-90 (Jul. 18, 1990), VAOPGCPREC 67-90 (Jul. 18, 1990). VA's General Counsel draws on medical authorities and case law from other federal jurisdictions and concludes that a defect differs from a disease in that a "defect" is "more or less stationary in nature," while a "disease" is "capable of improving or deteriorating." See VAOPGCPREC 82-90 at p. 2, para. 3. Defects are defined to be "static conditions" that are "incapable" of "improvement or deterioration." O'Bryan v. McDonald, 771 F.3d 1376, 1381 (Fed. Cir. 2014) (citing VAOPGCPREC 67-90); VAOPGCPREC 82-90 (Defects are defined as "structural or inherent abnormalities or conditions which are more or less stationary in nature"). Service connection is generally precluded for such "defects," because they are not "diseases" or "injuries" within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9, 4.127 (2016); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (upholding the validity of 38 C.F.R. § 3.303(c) which codifies the Secretary's authority to exclude congenital or developmental defects from consideration for VA compensation purposes); see also Morris v. Shinseki, 678 F.3d 1346, 1353 (Fed. Cir. 2012) (upholding the validity of 38 C.F.R. § 3.303(c) as consistent with 38 U.S.C. § 1110); Terry v. Principi, 340 F.3d1378, 1383-84 (Fed. Cir. 2003). Congenital or developmental "defects" are not subject to the presumption of soundness under 38 U.S.C. § 1111. See O'Bryan v. McDonald, 771 F.3d at 1380 (Fed. Cir. 2014); Morris v. Shinseki, 678 F.3d1346, 1354-55 (Fed. Cir. 2002). As such, the presumption of soundness does not apply to congenital or developmental defects, because such defects "are not diseases or injuries" within the meaning of38 U.S.C. §§ 1110 and 1111. Quirin v. Shinseki, 22 Vet. App. 390, 397 (citing 38 C.F.R. § 3.303(c)); see also Terry v. Principi, 340 F.3d at 1385-86 (holding that the presumption of soundness does not apply to congenital defects); Winn v. Brown, 8 Vet. App. at 515-16 (holding that a non-disease or non-injury entity such as a congenital defect is "not the type of disease- or injury-related defect to which the presumption of soundness can apply"). However, congenital or developmental defects can still be subject to superimposed disease or injury. VAOPGCPREC 82-90. If, during service, such superimposed disease or injury does occur, service connection may be warranted for the resultant disability. Id. Service connection may be established for "diseases" (but not defects) of congenital, developmental, or hereditary origin that were incurred or aggravated during service within the meaning of applicable VA law and regulations. VAOPGCPREC 67-90 (explaining that diseases of congenital, developmental, or hereditary origin can be incurred or aggravated during service within the meaning of 38 U.S.C. §§ 1110, 1131, and 1111); VAOPGCPREC 82-90. In other words, service connection may be granted for "diseases" of congenital, developmental, or hereditary origin that either first manifest themselves during service, or that preexist service and progressed at an abnormally high rate during service. See VAOPGCPREC 67-90. In cases of congenital, developmental, or hereditary conditions that qualify as "diseases," the presumption of soundness under 38 U.S.C. § 1111 applies if such disease is not noted on the entrance examination. See O'Bryan v. McDonald, 771 F.3d at 1381. In such cases, the government rebuts the first part of the presumption that the disease did not preexist service by showing that it is hereditary. Id. With respect to the second part of the presumption, the government may carry its burden of showing that there was no aggravation of a congenital, developmental, or hereditary disease, by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Id. In short, in cases where a Veteran seeks to establish service connection for a congenital, developmental, or hereditary condition, VA is required to establish whether such condition is a "defect" or "disease," in order to apply the correct legal standard for the purpose of determining if a Veteran is entitled to VA disability compensation. Id. at 1380-81. The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, absent or poorly functioning parts or organs, will not be considered service connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. § 3.306(b). The Veteran seeks service connection for residuals of mandible surgery. He contends that he developed jaw pain and numbness in his lower lip and cheeks as a result of the surgery he underwent while in service. The service treatment records show that in November 1972, upon his entrance dental examination, no mouth, dental or jaw abnormalities were recorded. A medical examination of the Veteran's mouth in December 1982 was normal. An examination in April 1984 noted the Veteran had many teeth missing. In June 1988, the Veteran was considered a good dental candidate for repositioning his mandible. The Veteran underwent orthognathic surgery in 1991 to correct a class III malocclusion, in which his mandible was moved back and the anterior segment of his maxilla was moved forward. He was diagnosed with apertognathia in January 1992, a developmental deformity of the jaws. During a VA examination in June 1994, the Veteran reported numbness in his mandibular anterior segment and lower lip. The August 1994 prior rating decision concluded the surgery in service was remedial with the only residuals being anticipated residuals of such surgery and the Veteran's claim was closed. Upon receipt of new and material evidence, the March 2015 VA examination diagnosed the Veteran with paresthesia of the cranial nerve and explained that paresthesia is a well-known complication of the type of surgery the Veteran underwent: bilateral sagittal split osteotomy of the mandible. The claim for service connection for residuals of mandible surgery was reopened, yet the RO denied service connection as the claimed numbness was a well-known complication of the Veteran's in-service surgery. This matter was initially presented to the Board in January 2020. While the Board cited the VA regulations concerning the usual effects of medical and surgical treatment in service, the matter was nonetheless remanded to determine if the Veteran's jaw condition, "clearly and unmistakably," was a congenital or developmental defect that pre-existed service, or was aggravated by service. When the matter returned to the Board in June 2021, upon review of the February 2020 VA examination, the Board observed the examination was incomplete as the examiner applied an incorrect standard for pre-existing conditions. Specifically, the examiner failed to assess whether there was "clear and unmistakable evidence" that the Veteran's fibrous dysplasia was not aggravated by service, but the result of the natural progression of the Veteran's genetic disease. The Board found that an etiology opinion, as to whether it is clear and unmistakable that the preexisting jaw condition was not aggravated during service, was necessary in order to make a decision in this case. Subsequently, the Veteran underwent a VA examination in August 2021. The examiner opined that the Veteran's claimed condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury or illness. As rationale the examiner cited to the medical records, prior examinations, and surgical notes made by various medical professionals noting his preexisting jaw condition. These medical professionals determined the complication of numbness the Veteran experienced was an anticipated residual of surgery. VA examiners were unable to find any evidence in the medical records to indicate the residuals from the Veteran's mandible surgery were aggravated in service. Congenital defects can still be subject to superimposed disease or injury. See VAOPGCPREC 82-90. Where such superimposed disease or injury occurs, service connection may be warranted for the resulting disability. Id. Therefore, the Veteran's claim for service connection turns on the issue of whether the residual numbness of mandible surgery is a resultant disability from the dental treatment the Veteran received in-service for his pre-existing congenital defect of fibrous dysplasia. The medical evidence of record indicates that symptoms of fibrous dysplasia and the disorder itself were associated with the Veteran's pre-existing congenital condition of stage II perracipital fibrous dysplasia and facial asymmetry. As a congenital condition, therefore, the presumption of soundness does not apply and service connection may only be granted on the basis of a superimposed disease or injury (i.e., aggravation). The Board finds that the Veteran's residual numbness does not constitute a resultant disability from a superimposed disease or injury that occurred during service, i.e., the in-service dental treatment. Treating dental professionals and VA examiners have opined the numbness in the Veteran's mandibular anterior segment and lower lip is an anticipated residual and well-known complication of his ameliorative mandible surgery. The resulting numbness, although unfortunate, was a known and likely outcome from the surgery, and does not constitute a superimposed disease or injury to warrant service connection. The appeal is denied. Cory Picton Veterans Law Judge Board of Veterans' Appeals 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.