Citation Nr: 0000841 Decision Date: 01/11/00 Archive Date: 01/27/00 DOCKET NO. 95-16 166 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a dental condition due to dental trauma. 2. Entitlement to an evaluation in excess of 10 percent for temporomandibular joint (TMJ) disability and postoperative residuals. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Johnston, Counsel INTRODUCTION The appellant had active service from April 1989 to April 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from adverse rating determinations by the Department of Veterans Affairs (VA) Regional Offices (RO's) located in Seattle, Washington, Pittsburgh, Pennsylvania, and most recently in New Orleans, Louisiana. This case was last before the Board in April 1997 at which time the Board granted service connection for reactive airway disease. Accordingly, this issue has been resolved and is not on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997), and Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). Also, following the Board's April 1997 remand action and following a July 1998 VA dental examination, the RO granted service connection for TMJ disability in a September 1998 rating action. This disability was evaluated as 10 percent disabling. The veteran timely disagreed with the 10 percent evaluation and has perfected an appeal of that issue. Because she timely perfected an appeal of the assigned evaluation effective from the initial grant of service connection, the United States Court of Appeals for Veterans Claims (Court) decision in Fenderson v. West, 12 Vet. App. 119 (1999) is applicable. The veteran's claim requires an evaluation of the degree of disability at all times during the pendency of her appeal. "Staged ratings" may result, if warranted. For the reasons provided below, the veteran's as to this issue must again be remanded for additional development and additional rating consideration. FINDING OF FACT No evidence is of record which tends to show that the veteran sustained any dental trauma during her military service. CONCLUSION OF LAW The claim for service connection for a dental condition due to dental trauma is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Law and Regulation: In general, service connection may be established for disability resulting in disease or injury suffered in line of duty. 38 U.S.C.A. §§ 1110, 1131. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic, or when a diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). 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). A person who submits a claim for VA disability compensation benefits shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a). The Court has provided that a well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such claim need not be conclusive but only possible to satisfy the initial burden of 38 U.S.C.A. § 5107(a). Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Murphy v. Derwinski, 1 Vet. App. 78, 81, 1990. Although a claim need not be conclusive, it must be accompanied by evidence. The VA benefits system requires more than just an allegation; a claimant must submit supporting evidence and the evidence must justify a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). When the issue presented in an application for service-connected disability is factual in nature, e.g., whether an incident or injury occurred in service, competent lay testimony, including a veteran's solitary testimony, may constitute sufficient evidence to establish a well-grounded claim under 38 U.S.C.A. § 5107(a). See Cartright v. Derwinski, 2 Vet. App. 24 (1991). However, where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Murphy v. Derwinski, 1 Vet. App. 78 (1990). A claimant cannot meet the burden imposed by § 5107(a) merely by presenting his own or other lay testimony, because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Consequently, lay assertions of medical causation cannot constitute sufficient evidence to render a claim well grounded under § 5107(a); if no cognizable evidence is submitted to support the claim, it cannot be well grounded. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). The Court has also established what may be referred to as a three-pronged test in analyzing well-grounded claims. In Caluza v. Brown, 7 Vet. App. 498 (1995), the Court held that, for a veteran's claim for service connection to be well grounded, there must be competent evidence of: (1) Current disability in the form of a medical diagnosis; (2) incurrence or aggravation of the disease or injury in service in the form of lay or medical evidence; and (3) a nexus between in- service injury or disease and current disability in the form of medical evidence. Finally, a claim that is not well grounded does not present a question of fact or law over which the Board has jurisdiction. 38 U.S.C.A. § 7105(d)(5); Grottveit v. Brown, 5 Vet. App. 91 (1993). Analysis: In this case, the veteran's claim for service connection for a dental condition due to dental trauma is not well grounded because there is simply no evidence of any dental trauma causing a dental condition at any time during service. There are extensive service medical records and these records clearly show that the veteran received ongoing treatment for TMJ disability and other dental problems including several extensive surgeries in an attempt to repair TMJ disability. During this time, several of the veteran's teeth were extracted as part of her overall dental treatment. However, none of the service medical records document a loss of teeth through dental trauma. When this case was last before the Board in April 1997, the Board remanded this issue to the RO specifically to provide the veteran with an opportunity to state with specificity the basis of her claim for service connection for a dental condition due to dental trauma. She was requested to explain when and how a trauma occurred and to explain how disability occurred from such trauma. On remand, in September 1997, the RO specifically wrote to the veteran and requested her to provide an explanation of her basis for this particular claim. In November 1997, she submitted a detailed written history of her dental problems during service. She wrote that the dental trauma from which she suffered was "a direct result of stress incurred while in the service and is the cause of my TMJ." In substance, the veteran has never provided any cogent argument as to having sustained any dental condition from a dental trauma in service nor is any dental trauma independently or objectively documented in any other evidence on file, including the service medical records. In February 1997, the VA General Counsel issued an opinion in which it found that the term "service trauma" did not include situations where a veteran's teeth were extracted as a part of ordinary dental treatment received during service or from VA. See VAOPGCPREC 5--97 (Opinion issued January 1997, addendum issued February 1997). That opinion specifically held that, for the purposes of determining whether a veteran has a Class II(a) eligibility for dental care under 17 C.F.R. § 17.123(c) (1996), the term 'service trauma' did not include the intended effects of treatment provided during the veteran's military service. Accordingly, a 'service trauma' does not include the fact that the veteran underwent extraction of multiple teeth during ordinary dental treatment. Although where claims are not well grounded, VA does not have a statutory duty to assist the claimant in developing facts pertinent to the claim, VA may be obligated under 38 U.S.C.A. § 5103(a) to advise the claimant of the evidence needed to complete her application. This obligation depends upon the particular facts of the case and the extent to which the Secretary has advised the claimant of the evidence necessary to be submitted with the VA benefits claim. Robinette v. Brown, 8 Vet. App. 69 (1995). In this case, the RO has fulfilled its obligation under § 5103(a) in that it has advised the veteran that the reason this claim is considered not well grounded is because of an absence of evidence demonstrating a service trauma as that term is defined for VA compensation purposes. Furthermore, by this decision, the Board is informing the veteran of the evidence that is lacking and which is necessary to make this claim well- grounded. However, the veteran's attention is directed to the following remand action regarding proper evaluation of her TMJ disability. ORDER Service connection for a dental condition due to dental trauma is denied. REMAND The RO's September 1998 rating action granting service connection identified disability as TMJ internal derangement with associated osteoarthritis, myofascial pain, numbness and scarring. Yet, a single 10 percent evaluation was provided for moderate incomplete paralysis of the facial nerve in accordance with 38 C.F.R. § 4.124(a), Diagnostic Code 8207. In Esteban v. Brown, 6 Vet. App. 259 (1994), the Court reviewed prior decisions pertaining to the separate rating of disabilities, pyramiding, and its conclusion that it was possible for a veteran to have separate and distinct manifestations from the same injury permitting separate disability ratings. In Esteban, the veteran had sustained an injury to the right side of the face with residual scars, injury to the facial muscles, and disfigurement. The Court concluded that separate manifestations of a single disability must be rated separately unless they constituted the "same disability" or the "same manifestation" under 38 C.F.R. § 4.14. The critical element for deciding whether separate ratings were warranted was that none of the symptomatology for any separately ratable disability could be duplicative or overlapping with the symptomatology of any other disability. In Esteban, the Court found that as a matter of law, the veteran was entitled separate compensable ratings for (a) disfigurement, (b) tender and painful scars, and (c) muscle injury interfering with mastication. The possible requirement of providing the veteran with separate ratings for nonoverlapping disabilities, all attributable to TMJ or postoperative residuals, must be adequately considered and discussed. A review of the clinical evidence on file including the RO's actual characterization of the service-connected disability itself indicates that the veteran does have a postoperative neurological facial impairment which has been rated. It also appears that the veteran may be entitled to a separate evaluation for any TMJ loss of range of motion with TMJ articulation in accordance with 38 C.F.R. § 4.150, Diagnostic Code 9905, if any, to be combined with complaints of pain and findings of associated osteoarthritis with popping or clicking crepitus. Additionally, the most recent examination identifies "multiple scars" but completely fails to provide any additional detail regarding such scars and any opinion as to their size, location, tenderness, tendency to limit function of any part affected, and/or disfigurement. Finally, there is the question of loss of teeth apparently raised by the veteran in her claim regarding 'service trauma' denied above. It is not entirely clear whether the veteran has been claiming entitlement to service connection for missing teeth for compensation purposes or for dental treatment purposes. This should be clarified. With respect to service connection, the RO's (and veteran's) attention is directed to the provisions of 38 C.F.R. § 3.381 as amended effective June 8, 1999. Additionally, the case of Simington v. West, 11 Vet. App. 41 (1998), appears to strongly suggest that teeth removed in direct treatment of a service-connected disability would be service connected under 38 C.F.R. § 3.310(a) (1999). The veteran has argued that she had numerous teeth removed during service for treatment of her now service-connected TMJ. This also needs to be clarified, developed by examination, and discussed in rating action. In the Board's opinion, the July 1998 VA examination is inadequate in various particulars. First, while TMJ is ordinarily rated on TMJ articulation in accordance with 38 C.F.R. § 4.150, Diagnostic Code 9905, that examination at Block C3 failed to provide any (a) inter-incisal range or (b) range of lateral excursion (the meaning of the zero with the line drawn through it at that block is unknown). While the examination did indicate nerve damage to the entire chin, and did make reference to various surgical procedures, the examination failed to adequately identify all postoperative residuals (including reference to affected bones, joints, nerves, and muscles) in a clear manner for rating purposes. A discussion of the operative procedures performed during service would also be helpful. That examination failed to identify the quantity, size, location and dysfunction of all scars related to the veteran's post-operative TMJ disability. X-rays were not taken because of the veteran's pregnancy. Finally, a discussion of the clinical purpose(s) of numerous service tooth extractions must also be provided. For these reasons and bases, the case is REMANDED to the RO for the following actions: 1. The RO should offer the veteran the opportunity of submitting any additional evidence or argument she may have with respect to her claim for an evaluation in excess of 10 percent for TMJ and associated disability. She should also be requested to clarify any claims for VA compensation versus VA treatment for missing teeth. All evidence or argument submitted should be added to the claims file. 2. Thereafter, the veteran should be scheduled for an examination by an appropriate specialist or specialists to determine the nature and severity of all TMJ disability and postoperative residuals. The veteran's claims folder must be provided to the examiner in conjunction with the examination. The examiner should provide an explanation of the surgical procedures performed during service, including the reasons for the multiple tooth extractions and an opinion as to whether all or any such extractions were performed to treat TMJ disability. This examination report must also include a clear discussion of all existing TMJ disability, including all post-operative residuals. The report must clearly identify any limitation of TMJ articulation for (a) inter- incisal range and (b) range of lateral excursion. There must be a clear description of any and all nerve damage, muscle damage or atrophy, or bone or joint damage. There should be X-ray studies with a clear interpretation of any degenerative or arthritic changes. There should be a description of pain subjectively identified by the veteran and an opinion as to the sufficiency of pathology causing such pain. There must be a clear identification of all scarring existing as TMJ postoperative residuals including number, location and size, and a clear report of whether each such scar identified is either tender and painful on objective demonstration, whether they actually limit the function of any part affected, and/or whether and to what degree (slight, moderate, or severe) that such scars may disfigure the veteran's head, face or neck. A photograph of any exterior facial scars should be produced. 3. After completion of the above development, the RO should review the report of VA examination for completeness and if it fails to answer questions herein raised must be returned for corrective action. Thereafter, the RO should again evaluate the veteran's service-connected TMJ disability and postoperative residuals. In so doing, the RO should consider and address the guidelines provided by the Court in Fenderson v. West, 12 Vet. App. 119 (1999), which provides that in cases such as this, the issue is not simply an assessment of the current level of disability but rather an assessment of the level of disability at all times during the appeal including the possibility of providing "staged" ratings for different periods during the appeal. The RO must also address and discuss the Court's guidance in Esteban v. Brown, 6 Vet. App. 259 (1994), with respect to potentially separate ratings for a single service-connected disability understanding that the critical element is that none of the separately rated disabilities have symptoms which overlap with other separately rated disabilities. The RO must also consider Simington v. West, 11 Vet. App. 41 (1998), and the veteran's claim regarding teeth extracted as TMJ treatment during service. If the RO's subsequent rating action resolve all issue to the veteran's satisfaction, the RO should furnish the veteran and her representative with a detailed supplemental statement of the case addressing the issues raised above and 38 C.F.R. § 3.381, and an opportunity to respond. The case should then be returned to the Board for further appellate consideration. The veteran need do nothing until further notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. Gary L. Gick Member, Board of Veterans' Appeals