Citation Nr: 21032317 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 17-64 699 DATE: May 26, 2021 ORDER Entitlement to service connection for residuals of a jaw injury is denied. REMANDED Entitlement to service connection for degenerative arthritis of the spine (claimed as back condition) is remanded. FINDING OF FACT The Veteran is not shown to have a jaw injury, or residuals thereof. CONCLUSION OF LAW The criteria for entitlement to service connection for a jaw injury, including residuals thereof, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from May 2012 to August 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision of a Department of Veterans' Affairs (VA) Regional Office, the agency of original jurisdiction (AOJ). In April 2021, the Veteran testified during a virtual Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. In April 2021 correspondence, the Veteran made a motion to advance the case on the docket based on financial hardship. The record reflects that the Veteran is under severe financial hardship. Therefore, the motion is granted to advance the case on the docket based upon financial hardship. See 38 U.S.C. § 7107(b) (2012); 38 C.F.R. § 20.902(c) (2020). 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); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed aggravation of a disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). Jaw Injury The Veteran seeks service connection for residuals of a jaw injury. Specifically, the Veteran claims that he injured his jaw and chipped a tooth in a fall during basic training in service, and that he continues to suffer residuals of the injury, including difficulty chewing, stiffness, locking, and headaches. See Notice of Disagreement received October 22, 2015; Veteran's statement received July 11, 2017; Board hearing transcript dated April 9, 2021 at pg. 8. At the outset, the Board must determine whether the Veteran meets the criteria for the threshold element of a current disability. In other words, the Board must determine if the Veteran has been diagnosed with a jaw disability since the date of claim. See Shedden, 381 F.3d at 1167. The Veteran's service treatment records are silent for symptoms, treatment, or diagnosis of a jaw injury. His enlistment examination was negative for jaw symptoms. Service dental records do not reflect that the Veteran suffered tooth damage in a fall during basic training. The Veteran's physical health at the time of his administrative separation is not objectively indicated in the service treatment records, and the Board notes that service personnel records reflect that the Veteran was administratively discharged. The Veteran's assertions that he was discouraged by his superiors from seeking medical care for a jaw injury during service are inconsistent with, and outweighed by, other evidence of record reflecting that he sought and received treatment for tooth pain, back and thigh pain, and less severe ailments, to include cold symptoms, sore throat, and stuffy nose. See, e.g., Chronological Record of Medical Care entries dated June 29, 2012, July 16, 2012, and July 18, 2012. Post-service treatment records are silent for diagnosis, treatment, or symptoms of a jaw disorder. The Veteran's representative stated during the April 2021 Board hearing that the absence of evidence of post-service treatment is due to the Veteran being unable to afford such treatment. See Board hearing transcript dated April 9, 2021 at pg. 8. While the Board has acknowledged that the Veteran has experienced financial hardship, and is sympathetic with his contentions, the Veteran's assertions that he could not afford care for his jaw symptoms are inconsistent with, and outweighed by, other evidence of record reflecting that he underwent post-service diagnostic testing and treatment for his spine symptoms and during the April 2021 Board hearing he stated that he recently paid $800 for a dental night-guard. Id. The Veteran also stated that he had no further evidence to submit in support of his claim. Id. at pg. 7. In analyzing this claim, the Board also considered the Veteran's claim as to a current disability. While the Veteran may genuinely believe that he has a jaw injury, or residuals thereof, the Board finds that the question as to whether the Veteran has such an injury requires substantiation through diagnostic findings, requiring specialized training for a determination, and is not susceptible of lay opinion. See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). While the Veteran was not provided a VA examination for this claim, the Board finds that that the threshold for providing a medical examination was not met in this case. VA is only obligated to provide an examination in a claim for service connection when the record indicates that the disability or signs and symptoms of disability may be associated with active service and the record does not contain sufficient information to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, there is no evidence of a jaw injury in service or treatment for a jaw injury or residuals thereof after the Veteran's separation from service. Therefore, even under the low threshold of McLendon, a remand for a VA examination is not warranted. There being no competent evidence that the Veteran has been diagnosed with the claimed disability, analysis of the remaining elements of a service connection claim is unnecessary. While the Board is sympathetic to the Veteran's claim, Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. § 1110. Although the Veteran has claimed entitlement to service connection for residuals of a jaw injury, in the absence of competent evidence showing that he has a current disability, service connection cannot be established. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Based on this body of evidence, the appeal must be denied. In reaching this determination, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application here. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Once VA undertakes the effort to provide an examination or medical opinion when developing a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran was afforded a VA thoracolumbar spine examination in August 2018, during which the examiner noted a diagnosis of degenerative arthritis of the spine. In response to the AOJ's request for an opinion as to whether the Veteran's low back condition was caused by or is related to "in-service low back treatments during military service," the examiner opined that the Veteran's low back disorder is less likely than not related to such treatments, explaining that when the Veteran reported lower back pain during service, diagnostic testing was normal, suggesting no lasting back condition, adding that the Veteran is now diagnosed with a spine disorder "which was not established or accelerated during service." The August 2017 opinion is inadequate. The AOJ requested that the examiner opine as to whether the Veteran's low back disorder "was incurred in and/or related to in-service low back treatments during military service," which is not consistent with the Veteran's claim that he suffered a back injury during physical training. See, e.g., Notice of Disagreement received October 22, 2015; Appeal to the Board of Veterans' Appeals received December 1, 2017; Board hearing transcript dated April 9, 2021 at pg. 8. Additionally, the examiner made no reference to the Veteran's lay assertions of being injured in a fall during service and concluded that the Veteran's currently diagnosed degenerative arthritis of the spine is less likely than not related to service because it was not diagnosed during service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (finding that examination was inadequate where the examiner did not comment on the appellant's report of in-service injury and instead relied on the absence of evidence in the service medical records to provide a negative opinion). As the opinion is not adequate, it is not sufficient to serve as the basis of denial of entitlement to service connection and is of limited probative value. Accordingly, an addendum opinion is needed to address the nature and etiology of the Veteran's low back disorder. See Barr, supra. The matter is REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Contact the Veteran and invite him to provide information regarding outstanding non-VA medical treatment for his back disorder, providing him VA Forms 21-4142, Authorization and Consent to Release Information to the VA, for this purpose. Also advise him that he may submit such records if he so chooses. Allow a reasonable time for reply. If VA attempts to obtain any outstanding records that are unavailable, the Veteran and his representative should be notified pursuant to 38 C.F.R. § 3.159(e). 3. Then, obtain an addendum opinion from an appropriately qualified VA examiner as to the etiology of the Veteran's low back disorders, to include degenerative arthritis, and any associated manifestations. Access to the Veteran's electronic claims file, which shall include a copy of this Remand, must be made available to the examiner for review, and be reviewed, in connection with the examination. *The need for another examination(s) is left to the discretion of the medical professional offering the opinion. Should an examination be necessary, all indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. After a complete review of the claims file, the examiner is asked to provide an opinion with complete rationale addressing the following: (a) Identify all currently diagnosed low back disorders that have been present at any point during the appeal period, which commenced in September 2013. (b) Provide an opinion as to whether it is at least as likely as not (50 percent or higher probability) that the currently diagnosed low back disorders, to include degenerative arthritis, onset during service, was caused by an in-service back injury, manifested within one year after service separation, or is otherwise etiologically related to service. **Reconcile the opinion with Veteran's competent report that he suffered a back injury during physical training in service. 4. Thereafter, ensure that the examiner has substantially responded to the questions posed by the Board, and if not, take corrective action. Then, readjudicate the remanded claim. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, 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.