Citation Nr: 21027005 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 14-35 830 DATE: May 4, 2021 ORDER Entitlement to service connection for a tongue disorder is denied. FINDING OF FACT The preponderance of the evidence is against finding that a tongue disorder began during active service or within one year of service, or is otherwise related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for a tongue disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1983 to October 1986. The Veteran testified at a September 2018 Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. This issue and the issues of entitlement to service connection for a left knee disorder and left foot disorder were remanded by the Board in a June 2019 decision. As a result of development, the issues of entitlement to service connection for a left knee disorder and a left foot disorder were granted. As this is a full grant of the benefits sought, the issues are no longer before the Board. The issue of entitlement to service connection for a tongue disorder is returned to the Board for appellate review. Entitlement to service connection for a tongue disorder is denied. The Veteran asserts that he is entitled to service connection for a tongue disorder on a direct basis. However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran's tongue disorder did not manifest during, within the year following, or as a result of active service. As such, service connection cannot be established on a direct basis. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially 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). In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The service treatment records (STRs) show no evidence of complaints or treatment for a tongue injury, lacerations, or disorder. Post-service VA and private treatment records show no complaints or treatment for a tongue disorder or symptoms. The only mention of a tongue disorder is in a November 2015 private treatment record note of a surgical history for the tongue. In a February 2011 correspondence, the Veteran stated his tongue was severely lacerated during an assault by three service members. The Veteran stated he was taken to the hospital and treated. The Veteran stated he was told he may have some nerve damage. He stated that he had a partial plate in his mouth that lacerated his mouth further. He stated that he often bites and burns his tongue because he cannot "feel the exact location" of his tongue in his mouth. At the September 2018 Board hearing, the Veteran testified that he was assaulted in service. He stated that a partial plate in his mouth ripped and his tongue was split by the plates. Hearing Transcript (T.) at 6. As a result of the assault, the Veteran stated that he has "spots" on his tongue where he is unable to taste. Id. He stated that he chews the bottom of his tongue and gets blood blisters in his mouth. Id. The Veteran stated he did not receive treatment because he was in the field as a medic and his unit was "short of medics." T. at 7. In an August 2019 statement, the Veteran stated that the symptoms of his tongue have worsened. In a February 2021 VA memo, VA did not find medical records for dental treatment on August 3, 1986, the date of the Veteran's reported in-service assault. In addition, VA stated that Fort Ord, the location of the assault, was deactivated as an Army installation several decades ago. Therefore, the existence of military police reports of such an event is unlikely. The VA found no documentation in personnel records. VA concluded that any attempt to further locate the records of this incident would be futile. In this case, the Board acknowledges that the Veteran has not been afforded a VA examination with respect to his claim but finds no such examination was required because the evidence does not indicate that the claimed tongue disorder or injury, or symptoms thereof, may be associated with the Veteran's active service. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Also, the Veteran does not have a current diagnosis of a tongue disorder or injury, and there is no competent and credible evidence of an in-service event, injury or disease, or a nexus between any symptoms and service. The STRs show no complaints or treatment of a tongue injury, tongue disorder, or injury to the jaw or need for dental treatment due to an assault. As such, the Board finds that a VA examination was not required. Upon review of the record, the Board finds that the weight of the competent and credible evidence does not support a finding that the Veteran's tongue disorder was manifested in service or to a compensable degree in the first year following his separation from service. Consequently, service connection for a tongue disorder on the basis that such became manifested in service and persisted, or on a presumptive basis, is not warranted. Notably, the Veteran has not submitted competent evidence to show that he has suffered from any tongue disorder in service or since service. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). The Veteran's own statements relating his tongue disorder to service are not competent evidence, as he is a layperson and lacks the training to opine regarding medical etiology. The question of whether a tongue disorder is related to an incident during service is one that is medical in nature and may not be resolved by mere lay observation. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Board finds that these statements are outweighed by the medical evidence of record. In sum, the competent and probative evidence of record shows that the Veteran is not entitled to service connection for a tongue disorder. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. As the evidence preponderates against the claim, there is no reasonable doubt to be resolved and entitlement to service connection for a tongue disorder is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Thompson, 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.