Citation Nr: A21019264 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 200914-110462 DATE: December 3, 2021 ORDER Service connection for traumatic brain injury (TBI) is granted. Service connection for migraine headaches is granted. Service connection for cervical spine intervertebral disc syndrome (IVDS) and degenerative disc disease (DDD) is granted. Service connection for thoracolumbar spine strain is granted. Service connection for temporomandibular joint (TMJ) disorder is granted. Service connection for a dental disorder for compensation purposes is denied. FINDINGS OF FACT 1. Resolving all doubt in favor of the Veteran, his currently diagnosed TBI was incurred in the line of duty and is not the result of his willful misconduct. 2. Resolving all doubt in favor of the Veteran, his currently diagnosed migraine headaches was incurred in the line of duty and is not the result of his willful misconduct. 3. Resolving all doubt in favor of the Veteran, his currently diagnosed cervical spine IVDS and DDD was incurred in the line of duty and is not the result of his willful misconduct. 4. Resolving all doubt in favor of the Veteran, his currently diagnosed thoracolumbar spine strain was incurred in the line of duty and is not the result of his willful misconduct. 5. Resolving all doubt in favor of the Veteran, his currently diagnosed TMJ disorder was incurred in the line of duty and is not the result of his willful misconduct. 6. The Veteran does not have a dental disability for which service connection for compensation purposes may be granted. CONCLUSIONS OF LAW 1. The criteria for service connection for a TBI have been met. 38 U.S.C. §§ 105, 1131, 5107; 38 C.F.R. §§ 3.1, 3.102, 3.301, 3.303. 2. The criteria for service connection for migraine headaches have been met. 38 U.S.C. §§ 105, 1131, 5107; 38 C.F.R. §§ 3.1, 3.102, 3.301, 3.303. 3. The criteria for service connection for cervical spine IVDS and DDD have been met. 38 U.S.C. §§ 105, 1131, 5107; 38 C.F.R. §§ 3.1, 3.102, 3.301, 3.303. 4. The criteria for service connection for thoracolumbar spine strain have been met. 38 U.S.C. §§ 105, 1131, 5107; 38 C.F.R. §§ 3.1, 3.102, 3.301, 3.303. 5. The criteria for service connection for TMJ disorder have been met. 38 U.S.C. §§ 105, 1131, 5107; 38 C.F.R. §§ 3.1, 3.102, 3.301, 3.303. 6. The criteria for service connection for a dental disorder for compensation purposes have not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.381, 4.150. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1983 to August 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in March 2020 by a Department of Veterans Affairs (VA) Regional Office (RO) under the modernized appeals system. In September 2020, the Veteran filed a timely Decision Review Request: Board Appeal (Notice of Disagreement) (VA Form 10182) and requested a hearing before a Veterans Law Judge, which was held before the undersigned in June 2021. A transcript of the hearing is associated with the record. Based on the Veteran's election, the Board may only consider the evidence of record at the time of the issuance of the decision on March 16, 2020, and any evidence submitted by the Veteran at the hearing or within 90 days thereafter, i.e., by September 8, 2021, which includes the evidenced received later in June 2021. 38 C.F.R. § 20.302(a). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. The Veteran contends that all of his claimed disorders resulted from in-service injuries incurred by being hit by a motorcycle while he was walking home from the enlisted club one night. In this regard, his service treatment records (STRs) reveal that, in June 1984, the Veteran was drunk and staggering down the street when he turned and was struck by an oncoming motorcycle traveling 10 to 15 miles per hour. It was noted that he struck his head on the pavement, and complained of jaw pain and headaches. Upon examination, it was noted that he smelled of alcohol and an assessment of a head injury was noted. He also sustained hemarthrosis of the TMJ, but no fracture of the mandible, and fracture of tooth 8. In August 1984, it was noted that such injuries were not incurred in the line of duty and were due to misconduct. In July 1984, the Veteran was giving a Commanding Officer's Non-Judicial Punishment of a Captain's Mast for being drunk on station in connection with the June 1984 accident. In April 1985, he complained of back pain and an assessment of muscle strain was noted. In an October 2019 statement, M.K., who was the rear passenger on the motorcycle that hit the Veteran as he was walking, indicated that he and the driver of the motorcycle were drunk and they did not see the Veteran before they ran him over. In this regard, he reported that, following their departure from the club on a motorcycle, the driveway curved around a huge tree and there was no way to avoid hitting what was on the backside of the tree. In June 2021, the Veteran submitted a statement from C.W., who witnessed the Veteran getting hit by the motorcycle. He noted that the driver of the motorcycle and M.K. were both intoxicated, and the motorcycle was swaying all over the road and going very fast. The Veteran was walking in front of him and, before he knew it, the motorcycle hit the Veteran as he had no chance to avoid it. He also noted that the Veteran and himself were walking home from the enlisted club on the right side of the road as it was the only way back to the barracks. In an October 2018 administrative decision, the AOJ determined the injuries incurred by the Veteran in June 1984 were the result of his willful misconduct as the motorcycle accident was caused by him while he was under the influence and, thus, no benefits may be awarded based on such event. In this regard, an injury or disease incurred during active military, naval, or air service will be deemed to have been incurred in the line of duty and not the result of the veteran's own misconduct when the person on whose account benefits are claimed was, at the time the injury was suffered or disease contracted, in active military, naval, or air service, whether on active duty or on authorized leave, unless such injury or disease was a result of the person's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. § 105; 38 C.F.R. §§ 3.1(m), 3.301(a). Section 105(a) creates a presumption that an injury or disease incurred by a veteran during active service was incurred in the line of duty and not caused by the veteran's misconduct. Thomas v. Nicholson, 423 F.3d 1279, 1283-84 (Fed. Cir. 2005); Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009). The government can rebut the presumption through establishing, by the preponderance of the evidence, that the injury or disease was caused by the veteran's own willful misconduct. Thomas, 423 at F.3d at 1284-85; Holton, 557 F.3d at 1367. In this regard, 38 C.F.R. § 3.301(a) provides that direct service connection may be granted only when a disability or cause of death was incurred or aggravated in the line of duty, and not the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs. See also 38 C.F.R. § 3.1(m). "Willful misconduct" means an act involving conscious wrongdoing or known prohibited action. See also 38 C.F.R. § 3.1(n). Further, it involves (1) deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences, (2) mere technical violation of police regulations or ordinances will not per se constitute willful misconduct, and (3) willful misconduct will not be determinative unless it is the proximate cause of injury, disease or death. Id. Additionally, the simple drinking of alcoholic beverage is not of itself willful misconduct; however, the deliberate drinking of a known poisonous substance or under conditions which would raise a presumption to that effect will be considered willful misconduct. If, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person's willful misconduct. 38 C.F.R. § 3.301(c)(2); Martin v. McDonald, 761 F.3d 1366, 1371 (Fed. Cir. 2014) ("Congress has taken action indicating that alcohol abuse and willful misconduct... are not coextensive."). In this case, the Veteran's injuries did not result from an act involving conscious wrongdoing or a known prohibited action on his behalf. Furthermore, such were not due to deliberate or intentional wrongdoing, and his drinking of alcohol was not the proximate cause of his injuries. Specifically, although the Veteran was noted to be drunk when he was hit by the motorcycle, his consumption of alcohol was not the proximate cause of the accident. In this regard, M.K. noted that the driver of the motorcycle was drunk and he was going to hit what was behind the tree regardless of the Veteran's actions. C.W. also noted that the Veteran was walking home from the enlisted club on the right side of the road as it was the only way back to the barracks, and he was unable to avoid being hit by the motorcycle. Stated another way, based on M.K. and C.W.'s statements, the Board finds that the Veteran would have been struck by the motorcycle even if he had been sober. Therefore, the Board finds that the Veteran's alcohol consumption prior to the accident was not the proximate cause of his injuries, and his claims for compensation based on such injuries are not precluded by law. 1. Entitlement to service connection for a head injury. 2. Entitlement to service connection for a headache disorder. 3. Entitlement to service connection for a neck disorder. 4. Entitlement to service connection for a back disorder. 5. Entitlement to service connection for residuals of a broken jaw. Based upon a review of the evidence and after resolving all doubt in favor of the Veteran, the Board finds that service connection for a TBI, migraine headaches, cervical spine IVDS and DDD, thoracolumbar spine strain, and TMJ disorder is warranted. In this regard, the Veteran was afforded VA examinations in September 2018, in connection with his head injury, headache, neck, and jaw claims. At such time, the examiners noted diagnoses of migraine including migraine variants, TMJ disorder, and cervical spine degenerative arthritis and IVDS. The examiner opined that the Veteran's current headache and neck disorders were at least as likely as not incurred in and/or caused by the June 1984 motorcycle accident. In support thereof, she explained that the Veteran sustained a head and neck injury during the accident, there were several medical records of neck pain and headaches, and such conditions still existed today. Another examiner opined that the Veteran's TMJ disorder was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. In support thereof, she explained that an accident involving the head or neck was one of the known possible causative factors for TMJ according to many sources, including the National Institutes of Health. She also noted that there were records referencing sore joints, including the jaw, and head trauma related to a motorcycle accident. Thus, she concluded that the TMJ disorder was more likely than not a result of the motorcycle injury. However, another examiner in September 2018, found that there was no objective evidence found in the records to support a diagnosis of TBI and the Veteran's cognitive functions were grossly intact, and his subjective symptoms were most likely related to another etiology other than TBI. Nonetheless, in January 2020, the Veteran underwent another VA examination at which time the examiner noted a diagnosis of TBI and opined that such was at least as likely as not incurred in or caused by the head injury during service. In this regard, the examiner noted that the TBI more likely than not occurred during the Veteran's military service in 1984 as documented by the head injury along with a brief period of loss of consciousness. That same month, the Veteran also underwent another VA examination in regard to his headache disorder and such examiner noted a diagnosis of chronic posttraumatic headaches. He opined that it appeared at least as likely as not that the Veteran developed posttraumatic headaches from the TBI he suffered while in the military, but there were no salient features of migraine or migraine like types of cephalalgias. He also noted that X-rays of the cervical spine seemed to demonstrate mild to moderate arthritic degenerative changes. Thus, he concluded that the Veteran's headaches at least as likely as not emanate and are a consequence of his blow to the head which continued to this day. The Veteran was also afforded VA examinations in connection with his back and neck claims in January 2020. Such examiner noted diagnoses of thoracolumbar spine strain and cervical spine IVDS and DDD. He also indicated that, after a review of the Veteran's STRs, he suffered a traumatic head injury after being struck by a motorcycle during his active duty military service. The examiner found that the severity of the impact resulted in a fractured mandible, multiple laceration, neck pain, and hospitalization for approximately one month. Thus, he concluded that based on the Veteran's history, physical examination findings, and radiology studies at the time of the examination, would make it at least as likely as not that his current cervical spine DDD and chronic upper thoracic strain were all related to his trauma he sustained during his active duty military service. Thus, based on the foregoing, the Board resolves all doubt in the Veteran's favor and finds that his currently diagnosed TBI, migraine headaches, cervical spine IVDS and DDD, thoracolumbar spine strain, and TMJ disorder is related to his military service. Therefore, service connection for such disorders is warranted. 38 U.S.C. § 5107; 38 C.R.F. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 6. Entitlement to service connection for a dental disorder for compensation purposes. The Veteran also contends he has a dental disorder that resulted from his in-service motorcycle accident, and thus seeks service connection for such disorder for compensation purposes. However, compensation is only available for certain types of dental and oral conditions, to include chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss of the mandible, nonunion or malunion of the mandible, loss of the maxilla, nonunion or malunion of the maxilla, limited temporo-mandibular motion, loss of the ramus, loss of the condyloid or coronoid processes, loss of the hard palate, and loss of teeth due to the loss of substance of the body of the maxilla or mandible without loss of continuity. 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. Further, compensation is only available for loss of teeth where the lost masticatory surface cannot be restored by suitable prosthesis, if such is due to loss of substance of body of maxilla or mandible, but only if such bone loss is due to trauma or osteomyelitis, and not to the loss of the alveolar process as a result of periodontal disease, as such loss is not considered disabling. 38 C.F.R. § 4.150, Diagnostic Code 9913. Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses and periodontal disease will be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment, but not for purposes of compensation. 38 C.F.R. § 3.381. Based on the decision herein, the Veteran has been awarded service connection for TMJ disorder and limited mandibular range of motion. However, the Board finds that there is no evidence that he has a dental disorder for compensation purposes. In this regard, the September 2018 VA examiner noted a diagnosis of loss of teeth a as the Veteran was missing teeth number 3, 8, 17, and 32. In this regard, he noted that teeth 3 and 8 were restored by fixed partial dentures and tooth 31 had lost a crown. The examiner noted that the loss of teeth was not due to the loss of substance of body of maxilla or mandible without loss of continuity and was not due to trauma or disease. Additionally, at a January 2020 VA examination, the examiner likewise noted a diagnosis of loss of teeth due to trauma described as the motorcycle accident; however, he found that there was no loss of teeth due to the loss of substance of body of maxilla or mandible without loss of continuity. The examiner also noted that the missing tooth masticatory surface could be restored by suitable prosthesis. Thus, as indicated previously, compensation is available for loss of teeth only if such loss is due to the loss of substance of the body of the maxilla or mandible during service due to trauma or disease such as osteomyelitis. In this case, while the Veteran had loss of teeth and the January 2020 examiner noted that such was due to trauma, there is no evidence that such was due to the loss of substance of the body of the maxilla or mandible. Thus, since the Veteran does not have a dental disorder for which VA compensation benefits are payable, the claim for service connection for a dental disorder for compensation purposes must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence weighs against this claim, that doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Clark 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.