Citation Nr: 21010659 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 16-12 307 DATE: February 25, 2021 ORDER Entitlement to service connection for temporomandibular joint (TMJ) disorder is denied. REMANDED Entitlement to service connection for a low back disability, to include as secondary to service-connected bilateral shoulder disability, is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s TMJ dysfunction began during his active military service or is otherwise related or attributable to his service. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for TMJ dysfunction. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1980 to June 1984. This appeal to the Board of Veterans’ Appeals (Board) is from March 2014 and February 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in September 2018 and October 2020, and both times the claims were remanded for further development – including to obtain addendum opinions as to the etiology of the Veteran’s low back disability and his TMJ syndrome. Concerning the latter, those remand instructions since have been completed as directed. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only “substantial” rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board, therefore, is deciding the claim for TMJ dysfunction. Unfortunately, however, there conversely has not been the acceptable substantial compliance with the October 2020 remand directives concerning the remaining claim for a low back disability, so regrettably the Board must again remand this other claim. 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. § 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or a disease, and (3) a nexus, or link, between the current disability and the disease or injury in service. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Entitlement to service connection for TMJ dysfunction The Veteran contends that his TMJ dysfunction was caused by a left jaw injury he sustained during his service with subsequent diagnosis of “TMJ with popping.” However, the Board concludes that, while he has a current diagnosis of a TMJ disability, and evidence shows he sustained a jaw injury during his service, the preponderance of the evidence weighs against finding that his TMJ disability began during his service or is otherwise related or attributable to his service, including especially to that trauma during his service. The Veteran’s service treatment records (STRs) show he presented for evaluation in November 1982 complaining that his jaw was cracking when chewing or yawning, also indicating he had been hit on the left side of his face one year earlier. Physical examination revealed a “loud popping noise when mouth is opened” but no edema. The initial assessment was possible cartilage damage and he was referred to another clinic on base for further evaluation. Following an additional examination, that same day, the assessment was TMJ popping, etiology unknown. The remainder of his STRs do not mention any complaints, diagnosis, or treatment related to TMJ impairment or issues. On separation examination in May 1984, his head, face, and mouth were reported as normal on clinical evaluation, and he was “dentally qualified” for separation with no “dental defects and diseases” noted. His military service ended in June 1984. There is no suggestion of any TMJ dysfunction for many ensuing years. Indeed, post-service VA and private treatment records dating since February 2004 do not mention any complaints, diagnosis, or treatment for TMJ or jaw-related problems or issues until September 2014, so not until some 30 years after conclusion of the Veteran’s service. A nursing initial evaluation note from that day indicates the Veteran was changing treatment providers. During screening for various health issues, he endorsed having difficulty with chewing or swallowing, stating he had TMJ jaw pain. The physician’s note from that day does not reflect any complaints or findings regarding any chronic TMJ disorder.   On the next day, in October 2014, the Veteran had a VA examination to evaluate his claimed TMJ disorder. He described being struck on the left side of his jaw by another soldier in 1981 and having difficulty chewing since the assault but not seeking medical care until 1982. He related that military medical personnel told him his jaw was out of place, but also that no treatment was rendered. Regarding his current symptoms, he stated that his jaw pops when eating harder foods or chewing gum and that he feels the most discomfort in his jaw when he wakes up in the morning. He reported maintaining routine visits with a private dentist but had never discussed his jaw disorder with his dentist or sought treatment for it until the then present. Examination findings included no localized tenderness, pain on palpation, or clicking or crepitation of the joints or soft tissues of the TMJ. Imaging revealed no degenerative or traumatic arthritis or other significant findings of the TMJ. In addition to the examination by the physician, the Veteran had a VA examination by a dentist also that same day to further evaluate this claimed TMJ disorder. Again, he described difficulty chewing due to this disorder. Examination findings included mild to moderate occlusal wear, limitation in inter-incisal range of motion, but no pathology on panoramic digital imaging and no observed pain upon palpation of the muscles of mastication. In an addendum, the examiner summarized that the Veteran had evidence of moderate occlusal tooth wear, which is caused by bruxism (i.e., grinding of his teeth), which itself was “more likely the cause of [his] claimed TMJ condition.” Although the examiner identified bruxism as the current disability, the examiner did not provide any medical opinion regarding the onset or etiology of the Veteran’s bruxism, including especially in terms of whether related or attributable to the Veteran’s military service and particularly the injury in question. The Board resultantly remanded this claim in September 2018 to obtain this additionally needed medical opinion as to whether the Veteran’s bruxism, including limitation of interincisal range of motion, is related to his military service and especially to the “injury to his left jaw and/or diagnosis of TMJ popping in September 1981 [sic].”   In August 2019, to this end, the October 2014 VA examining dentist reviewed the Veteran’s claims file again. This examiner appeared to also identify bruxism as the currently diagnosed disability, stating “bruxism is more likely the cause of the Veteran’s claimed condition.” This reviewing examiner then opined that it is less likely than not the Veteran’s “diagnosis of inter-incisal range of motion is related to [his] military service, including the diagnosis of TMJ popping.” The examiner explained that she was “unable to determine the etiology of bruxism in the case” and whether it was related to the Veteran’s military service. She further explained there was no single causative factor for sleep bruxism, but rather a set of complex conditions that interact with central nervous system function and sleep regulation. The Board’s subsequent October 2020 remand determined that August 2019 opinion was inadequate because it did not address whether the Veteran’s left jaw injury during service may have caused his current bruxism, so the Board’s additional remand of this claim was for an addendum opinion concerning this determinative issue of causation. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (requiring that VA adjudicators ensure the adequacy of an examination and opinion). In December 2020, an addendum opinion consequently was provided based on review of the claims file. This examiner opined that it is less likely than not that the Veteran’s bruxism is related to his service, including his jaw injury during service. The rationale was that the Veteran was seen only once during his service for jaw popping when yawing or chewing food, and that, when he was treated, he attributed it to the jaw injury one year prior. This December 2020 VA examiner explained that bruxism is more likely the cause of the Veteran’s TMJ condition and, further, that there was no bruxism or symptoms of bruxism noted during his service. Additionally, an intervening February 2014 VA dental examination noted the Veteran had fillings but no dental wear or bruxism. The December 2020 VA examiner goes on to point out that the etiology of bruxism is not fully understood, but that it is a widespread condition as 80 to 90 percent of the general population experience teeth grinding at some point during life and 5 percent are diagnosed with chronic bruxism. Acute trauma can cause bruxism when it results in misalignment and malocclusion of the teeth, but this was not documented in this Veteran either during or since his service. This examiner reasoned that it is more likely than not the Veteran’s bruxism is due to his history of cocaine use after service. The rationale being that several recreational drugs, including cocaine, can cause bruxism and the Veteran has a history of cocaine use from his separation from service until 2011, so a 27-year history of cocaine use. The Board sees the Veteran’s VA treatment records confirm a history of cocaine and other substance abuse. Ultimately, the December 2020 VA examiner concluded the Veteran’s current TMJ disability is caused by bruxism, and that his bruxism in turn is unrelated to his service, including to his jaw injury in service. There is no established medical nexus to warrant finding the bruxism was incurred during the Veteran’s service or is related to his service – including, again, to the popping of his jaw and reported history of a facial/head injury inasmuch as the VA examiner indicated those events have no relationship to the bruxism, which instead was more likely than not caused by the Veteran’s history of cocaine use after his separation from service. The December 2020 VA examiner’s opinion is probative since based on an accurate medical history (so correct factual predicate) and provides the required explanation or rationale containing clear conclusions and supporting data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Since a layman, the Veteran is not competent to attribute his present bruxism or TMJ to anything that occurred during his service – including to his reported injury. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the several VA examiners’ opinions and rationales, including the one most recently obtained in December 2020 to correct the failings in those prior. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). As such, the Board finds that entitlement to service connection for a TMJ disability is not warranted. REASONS FOR REMAND Entitlement to service connection for a low back disability, to include as secondary to service-connected bilateral shoulder disability, is remanded. In the Board’s prior October 2020 remand, the Agency of Original Jurisdiction (AOJ), i.e., RO was directed to obtain an addendum opinion specifically concerning whether the Veteran’s lumbar spine disability is aggravated by his service-connected shoulder disabilities. Although, in the December 2020 addendum opinion, the examiner indicated the Veteran’s lumbar spine disability is not aggravated by his shoulder disabilities, the examiner then provided rationale explaining instead that the Veteran’s lumbar spine disability is not caused by his shoulder disabilities. Two opinions are required for secondary-service-connection claims: 1. Is the claimed disorder "caused by" or "due to" the service-connected disability? AND 2. Is the claimed disorder "aggravated by" the service-connected disability (Allen Aggravation)? Evidence of baseline disability is necessary to establish entitlement to service connection for aggravation of a nonservice-connected condition by a service-connection condition (regulatory change effective from September 2006). An opinion that something "is not related to" or "is not due to" does not answer the question of aggravation. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). So, under a secondary service connection theory of entitlement, service connection may be granted for disability that is proximately due to or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b). Here, though, it appears that the December 2020 VA examiner provided an aggravation opinion as requested in the October 2020 remand, but then provided a rationale concerning proximate cause.   This means that the rationale is inadequate and there was not the acceptable substantial compliance with the October 2020 Board remand directive requesting an aggravation opinion and rationale. Accordingly, this claim is again REMANDED for the following still additional comment: Obtain another addendum opinion from an appropriate clinician – this time indicating whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s service-connected right and/or left shoulder disabilities aggravate(s) his lumbar spine disability. Rationale for this additional opinion is essential, preferably citing to supporting evidence in the file and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Pak 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.