Citation Nr: 0003619 Decision Date: 02/11/00 Archive Date: 02/15/00 DOCKET NO. 97-33 566 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for left temporomandibular joint (TMJ) syndrome. 2. Entitlement to service connection for a left ankle disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Ferrandino, Associate Counsel INTRODUCTION The veteran had active service from September 1976 to June 1996. The veteran filed a claim in February 1997 for service connection for disabilities to include TMJ syndrome and a chronic left ankle disability. This appeal arises from the July 1997 rating decision from the Los Angeles, California Regional Office (RO) that denied the veteran's claim for service connection for TMJ syndrome and denied service connection for a left ankle disability. A Notice of Disagreement was filed in August 1997 and a Statement of the Case was issued in September 1997. A substantive appeal was filed in October 1997 with a request for a local hearing. On July 21, 1999, a hearing was held at the RO before Iris S. Sherman, who is a member of the Board rendering the final determination in this claim and who was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102 (West Supp. 1999). FINDINGS OF FACT 1. The veteran has presented no competent evidence to show that he currently suffers from left TMJ syndrome; the claim is not plausible. 2. The veteran has presented no competent evidence to show that he has a chronic left ankle disability; the claim is not plausible. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for left TMJ syndrome is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The claim of entitlement to service connection for a left ankle disability is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background On a service enlistment examination in February 1975, no history of ear, nose, or throat trouble or bone, joint, or other deformity was reported. On examination, the veteran's head, face, neck, scalp, ears and lower extremities were clinically evaluated as normal. On the examination of the mouth and throat, it was noted that the veteran's tonsils were enucleated. On a service indefinite reserve status examination in November 1979, the veteran's head, face, neck, scalp, mouth, throat, ear and lower extremities were clinically evaluated as normal. On a periodic examination in April 1983, the veteran's head, face, neck, scalp, mouth, throat, ear and lower extremities were clinically evaluated as normal. In October 1987, the veteran was seen with complaints of severe pain of the left ear that radiated to the jaw. He had the problem in the past. The assessment included external otitis; the local tenderness was thought to possibly represent early cellulitis. In October 1988, the veteran was seen with complaints of severe pain of the left ear. On examination, the left ear and the left side of the face were tender and painful to digital palpation. The assessment included trigeminal neuralgia or facial neuralgia of undetermined origin. The veteran was referred to neurology. On a neurology record from the same day in October 1988, the veteran was seen with a long history of left sided ear pain. The veteran stated that the nature of the pain had been the same for the past ten years. The pain occurred spontaneously but was exacerbated by touching the affected area. The pain radiated out of the ear into the jaw and neck. The veteran was having episodes of this pain once to twice a year and now the episodes occurred every two months or so. On examination, no tenderness was noted in the ear or structural abnormalities. The impression was that the veteran's complaints were very atypical for cranial neuralgia or headache variant. The fact that it had been experienced for over ten years probably indicated that it was benign. A few days later in October 1988, the veteran was seen with complaints of episodic left ear pain. He stated he had it since entering the service. The pain started in the ear and radiated to the jaw. On examination, the TMJ was tender to palpation on the left. The assessment included TMJ pain. On a periodic non flying examination in November 1988, the veteran's head, face, neck, scalp, ears and lower extremities were clinically evaluated as normal. On the examination of the mouth and throat, it was noted that the veteran's tonsils were enucleated. It was noted that the veteran had a history of left ear pain for the past 10 years, possibly due to TMJ. A dental record from December 1988 shows that the veteran was seen with complaints of pain in the ear that radiated down the jaw for a 10 year duration. The symptoms occurred once every one, two, or three months. On examination, the left TMJ and masticatory muscles were palpably tender. The assessment was joint capsulitis, likely left internal derangement; and masticatory myalgia. In March 1996, the veteran was seen with complaints of left ankle pain for one year when using the treadmill and when descending stairs. The pain was of the lateral left ankle, deep inside. There was no history of trauma to the ankle. On x-ray, no fracture was noted. The assessment included left ankle pain, chronic. In February 1997, the veteran filed a claim for service connection for disabilities to include TMJ syndrome and chronic left ankle disability. On a VA examination in April 1997, the veteran complained of TMJ syndrome and pain of the left ankle. The examination of the veteran's head, face, and neck, it was noted that the veteran had no headaches or dizziness. The examination of the nose, sinuses, mouth and throat noted chronic rhinitis and history of sinus infection. On examination of the ears, partial hearing loss was noted. The x-rays of the left ankle were unremarkable. The diagnoses included arthralgia of the left ankle. By rating action of July 1997, service connection for TMJ syndrome and a left ankle disability was denied. The current appeal to the Board arises from this denial. At the July 1999 Board hearing, the veteran testified that he had problems with his jaw starting in the early 1980s. Currently, he would get pain in the left side of the jaw and it radiated to his ear. There was periodic swelling. He would hear clicking, popping and grinding. The problem had gotten worse. The veteran denied seeking treatment postservice for this condition. He was informed by the undersigned of the requirements for a well-grounded claim and given 60 days to submit evidence that he currently had TMJ which had its onset in service. As to his ankle, the veteran testified that he had pain of the ankle in service and the same type of pain currently. He was advised of the need to submit medical evidence that he had a current disability of the ankle which had its onset in service and was again permitted 60 days to obtain this evidence. The veteran's representative requested the RO to grant an additional two weeks of time to obtain the evidence requested at the hearing. The time period was extended two weeks. No evidence in support of his claim was received from the veteran. II. Analysis Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if preexisting such service, was aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). A claimant seeking benefits under a law administered by the Secretary of the Department of Veteran Affairs shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The Secretary has the duty to assist a claimant in developing facts pertinent to the claim if the claim is determined to be well grounded. 38 U.S.C.A. § 5107(a). Thus, the threshold question to be answered is whether the veteran has presented a well grounded claim; that is a claim which is plausible. If he has not presented a well grounded claim, his appeal must fail, and there is no duty to assist him further in the development of his claim as any such additional development would be futile. Murphy v. Derwinski, 1 Vet. App. 78 (1990). In general, to sustain a well grounded claim, the claimant must provide evidence demonstrating that the claim is plausible; mere allegation is insufficient. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). The determination of whether a claim is well grounded is legal in nature. King v. Brown, 5 Vet. App. 19 (1993). A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of 38 U.S.C.A. § 5107(a). Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). To be well grounded, a claim must be accompanied by supportive evidence, and such evidence must justify a belief by a fair and impartial individual that the claim is plausible. Where the determinative issue involves a question of either medical causation or diagnosis, medical evidence is required to fulfill the well grounded claim requirement of 38 U.S.C.A. § 5107(a). Lathan v. Brown, 7 Vet. App. 359 (1995). In particular, establishing a well-grounded claim for service connection generally requires medical evidence of a current disability, see Rabideau v. Derwinski, 2 Vet. App. 141 (1992); medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in- service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997) (expressly adopting definition of well- grounded claim set forth in Caluza, supra), petition for cert. filed, No. 97-7373 (Jan. 5, 1998); Heuer v. Brown, 7 Vet. App. 379 (1995); Grottveit v. Brown, 5 Vet. App. 91 (1993). The second and third Caluza elements can also be satisfied by evidence that a condition was "noted" during service or during an applicable presumption period; evidence showing post-service continuity of symptomatology; and medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See 38 C.F.R. § 3.303(b) (1999); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). In the case of a disease only, service connection also may be established by evidence of the existence of a chronic disease in service or of a disease, eligible for presumptive service connection pursuant to statue or regulation, during the applicable presumption period and present disability from it. Savage, 10 Vet. App. at 495. A. TMJ syndrome The veteran is claiming that he currently has TMJ syndrome that was incurred during service. The service medical records show the veteran complained of left ear pain that radiated to the jaw and neck. A definitive diagnosis regarding this complaint was not made. The April 1997 VA examination is negative for any diagnosis of TMJ syndrome. The veteran has denied seeking treatment for this disability postservice. He has also not submitted any medical evidence of the presence of a chronic TMJ dysfunction which is related to the complaints in service, despite being requested to do so. As there is no current medical evidence to establish the presence of the TMJ syndrome claimed on appeal, there can be no valid claim. Rabideau v. Derwinski, 2 Vet. App. 141 (1992); and Brammer v. Derwinski, 3 Vet. App. 223 (1992). The only evidence that would support the veteran's claim is found in his statements and testimony; however, lay evidence is inadequate to establish a medical diagnosis. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The veteran having failed to present evidence of a plausible claim for entitlement to service connection for TMJ syndrome, that claim must be denied. The veteran is advised that should medical evidence become available of the presence of chronic TMJ dysfunction which a medical provider attributes to military service, he should submit such evidence to the RO with a request that his claim be reopened. While the representative has argued that the VA has a duty to assist claimants whose claims are not well grounded, this proposition has been rejected by the United States Court of Appeals for Veterans Claims. On July 14, 1999, the Court affirmed a September 6, 1996 Board decision which denied claims for service connection for several disabilities as not well grounded. Morton v. West, 12 Vet. App. 477 (1999). In that case, the Court addressed and rejected the appellant's argument on appeal that, by virtue of various regulations, VA ADJUDICATION PROCEDURE MANUAL M21-1 provisions, and Compensation & Pension Service (C&P) policy concerning the development of claims, VA had taken upon itself a duty to assist in fully developing the facts pertinent to a claim even in the absence of a well-grounded claim. Because there is no duty to assist under 38 U.S.C. § 5107(a) absent the submission of a well- grounded claim, see Epps v. Gober, 126 F.3d 1464, 1467 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 2348 (1998), the Court held that the Secretary cannot undertake to assist a veteran in developing facts pertinent to his or her claim until such a claim has first been established. In the order, the Court addressed and rejected the request of a judge for en banc consideration. Morton v. West, 12 Vet. App. 477 (1999) (per curiam). The undersigned notes that a report of a VA examination was associated with the veteran's file subsequent to the last Statement of the Case; however, as the evidence is not related to the disabilities claimed on appeal, a Supplemental Statement of the Case is not warranted. B. Left ankle The veteran is claiming that he currently has a left ankle disability that was incurred during service. The service medical records show the veteran was treated for left ankle pain. The April 1997 VA examination includes a diagnosis of arthralgia of the left ankle. Arthralgia is defined as severe pain in a joint. Stedman's Medical Dictionary 149 (26th ed. 1995). While it is well established that pain often warrants separate and even additional consideration during the course of rating a disability, see, e.g., 38 C.F.R. §§ 4.40, 4.45, and 4.56, the Court has held that pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, No. 97-1948 (U.S. Vet. App. Dec. 29, 1999). As there is no current medical evidence to establish the presence of a left ankle disability for which service connection can be granted, there can be no valid claim. Rabideau v. Derwinski, 2 Vet. App. 141 (1992); and Brammer v. Derwinski, 3 Vet. App. 223 (1992). The only evidence that would support the veteran's claim is found in his statements and testimony; however, lay evidence is inadequate to establish a medical diagnosis. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The veteran having failed to present evidence of a plausible claim for entitlement to service connection for a left ankle disability, that claim must be denied. While the representative has argued that the VA has a duty to assist claimants whose claims are not well grounded, this proposition has been rejected by the United States Court of Appeals for Veterans Claims. On July 14, 1999, the Court affirmed a September 6, 1996 Board decision which denied claims for service connection for several disabilities as not well grounded. Morton v. West, 12 Vet. App. 477 (1999). In that case, the Court addressed and rejected the appellant's argument on appeal that, by virtue of various regulations, VA ADJUDICATION PROCEDURE MANUAL M21-1 provisions, and Compensation & Pension Service (C&P) policy concerning the development of claims, VA had taken upon itself a duty to assist in fully developing the facts pertinent to a claim even in the absence of a well-grounded claim. Because there is no duty to assist under 38 U.S.C. § 5107(a) absent the submission of a well- grounded claim, see Epps v. Gober, 126 F.3d 1464, 1467 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 2348 (1998), the Court held that the Secretary cannot undertake to assist a veteran in developing facts pertinent to his or her claim until such a claim has first been established. In the order, the Court addressed and rejected the request of a judge for en banc consideration. Morton v. West, 12 Vet. App. 477 (1999) (per curiam). The undersigned notes that a report of a VA examination was associated with the veteran's file subsequent to the last Statement of the Case; however, as the evidence is not related to the disabilities claimed on appeal, a Supplemental Statement of the Case is not warranted. Finally, the veteran is advised that he may request that his claim be reopened if he obtains medical evidence showing that he has a current disability of the left ankle which had its onset in service. ORDER As a well grounded claim has not been presented, entitlement to service connection for TMJ syndrome is denied. As a well grounded claim has not been presented, entitlement to service connection for a left ankle disability is denied. Iris S. Sherman Member, Board of Veterans' Appeals