Citation Nr: 0809847 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 06-19 678 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for lumbar and cervical spine disorders. 2. Entitlement to service connection for dental trauma. 3. Entitlement to an initial compensable evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL Appellant, appellant's wife and appellant's daughter ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The veteran served on active duty from March 1967 to March 1970. He also has had periods of service in the National Guard. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In February 2008, the veteran appeared before the undersigned Veterans Law Judge and offered testimony in support of his claim. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The veteran seeks service connection for a cervical spine and lumbar spine disability. His service medical records show that in April 1969, was treated for a stiff neck. On his February 1970 separation examination report, clinical evaluation of the spine was noted to be abnormal, and pectus excavation was noted. After service, private records show that in August 2003, magnetic resonance imaging (MRI) of the lumbar spine showed degenerative disc disease of the L5-S1, consistent with annualar tear at the posterior margin of the annular fibrosis L5-S1. In January 2004, the veteran was treated on two occasions for back and neck pain. On the second visit, the examiner diagnosed cervical disc and lumbar disc disease with radiculopathy. In an October 2007 statement, a private examiner, Dr. McGinley, reported that the veteran had been seen since 1994 and that on visits from that date he had already had long term neck problems relating back to his service in Vietnam. The examiner stated that he would supply actual records, if they are needed. The claims folder contains records from Dr. McGinley, dated from 2002 to 2004. Attempts should be made, therefore, to obtain the complete treatment records from the veteran's private physician. Records from Dr. Crosby should also be obtained. See Hearing transcript dated February 13, 2007, page 14. The veteran testified at his Board hearing in February 2008 that he injured his back when he was hit by a truck, and that while he did not receive treatment for back pain, he has had back pain from that time on. His service medical records show that he was struck by a 3/4 ton truck in August 1968. He has not been examined by VA regarding his cervical and lumbar complaints, and at his February 2008 hearing before the Board, he requested a VA examination. The veteran has service in the National Guard. The RO has made several attempts to obtain his National Guard records, without success. He testified in February 2008 that he injured his back on several occasions when he was in the National Guard when he was stationed at Camp Shelby in the late 1980s and when he was at Fort Campbell. He reported treatment in the Tennessee and Mississippi National Guard. The record indicates that the RO contacted the Tennessee National Guard in an attempt to locate records; however, an attempt to locate records from the Mississippi National Guard has not been undertaken. Additionally, the veteran's National Guard service dates have not been verified, including the dates of the veteran's active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). In light of the above, further efforts should be made in order to locate the veteran's National Guard records and to verify his period of National Guard service. The veteran seeks service connection for dental trauma. The record shows that he injured his lip during service in June 1968. In June 1991, a VA dentist stated that the June 1968 injury noted to be a laceration of the alvoeloar margin is dental trauma to the lower four incisors, which were later removed. The dentist further stated that teeth 24 and 25 were lost due to the documented trauma. A VA Dental Rating Sheet is of record, dated June 26, 1991. In a letter to the veteran dated June 1, 2005, the RO informed him that he was already service connected for trauma to teeth 24 and 25, for treatment only. In his April 2005 claim, the veteran requested service connection for dental trauma, referencing the 1968 injury. Under the holding in Mays v. Brown, 5 Vet. App. 302, 306 (1993), a claim for service connection for a dental disorder is also considered a claim for VA outpatient dental treatment. To establish entitlement to service connection for a tooth, the veteran must have sustained a combat wound or other in-service trauma. See 38 U.S.C.A. § 1712; 38 C.F.R. § 3.381(b). Dental disabilities which may be awarded compensable disability ratings are set forth under 38 C.F.R. 4.150. These disabilities include chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss of the mandible, nonunion or malunion of the mandible, limited temporomandibular motion, loss of the ramus, loss of the condyloid or coronoid processes, loss of the hard palate, loss of teeth due to the loss of substance of the body of the maxilla or mandible, if where the lost masticatory surface cannot be restored by suitable prosthesis, but only when the bone loss is a result of trauma or disease but not the result of periodontal disease. 38 C.F.R. § 4.150, DCs 9900-9916. The veteran has not undergone a VA dental examination, and he has requested that one be performed. Additionally, the RO wrote to the veteran to provide him with the notice required by 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159 (2007) in June 2005. The letter provided generic information in regard to establishing service connection for a claimed disorder. However, the veteran is seeking to establish service connection for dental trauma which has specific requirements. As such, he should be provided with notice appropriate to the claim. At his February 2008 Board hearing, the veteran stated that there are recent and relevant VA treatment records regarding his service-connected bilateral hearing loss. The most recent VA outpatient treatment records are dated in 2002. The recent treatment records are not on file and must be obtained. Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). As the case must be remanded for the foregoing reason, the veteran should be afforded an additional VA examination for his hearing loss. Finally, it appears that the veteran may have applied for Social Security Administration (SSA) disability benefits in 1979. These records should be obtained on remand. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Accordingly, the case is REMANDED for the following action: 1. As noted above, the veteran is already service connected for trauma to teeth 24 and 25, for treatment only. Send him notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159 for service connection for dental trauma, specific to the requirements of his claim. 2. Contact the National Personnel Records Center and request copies of the veteran's complete National Guard medical records, dated from 1982 to 2005. 3. Attempt to obtain the veteran's medical records from the Mississippi National Guard, through all appropriate channels. In this regard, contact the veteran to obtain information regarding his service, including the specific units in which he served, and the dates of such service. 4. Obtain verification of the complete dates and types of the veteran's service, whether it was active duty, active duty for training, or inactive duty training. All periods of active duty for training or inactive duty training should be separately noted. This should be done through the National Personnel Records Center, the Mississippi National Guard, the Tennessee National Guard, and/or other official channels, as necessary. 5. Ask the veteran to specify the dates that he was treated for dental trauma at the Nashville VA Medical Center (VAMC) since his separation from service, and make arrangements to obtain his records. Also, make arrangements to obtain his complete treatment records from the Nashville VAMC (i.e., for hearing loss, dental trauma, and cervical spine and low back disorders), dated from August 2002, forward. 6. Make arrangements to obtain the veteran's complete treatment records from Dr. Crosby, dated from 1970 forward, and his complete treatment records from James H. McGinley, M.D., dated from 1994 forward. 7. Make arrangements to obtain from SSA copies of all the documents or evidentiary material that were used in considering the veteran's claim for disability benefits, in approximately 1979. 8. Thereafter, schedule the veteran for a VA orthopedic examination. The claims file must be made available to and reviewed by the examiner in conjunction with completion of the examination report, and the examination report must reflect that the claims folder has been reviewed. All indicated tests and studies should be performed. The examiner should offer an opinion as to the etiology of any current cervical spine or lumbar spine disabilities. The examiner should state whether it is at least as likely as not (a 50 percent probability or greater) that any currently diagnosed cervical or lumbar spine disorder had its onset during active service or is related to any in- service disease or injury. Complete rationale must be provided for all opinions and conclusions reached. 9. Schedule the veteran for a VA audiometric evaluation to determine the extent of his bilateral hearing loss disability. The claims file must be made available to and reviewed by the examiner in conjunction with completion of the examination report, and the examination report must reflect that the claims folder has been reviewed. Complete rationale must be provided for all opinions and conclusions reached. 10. Schedule the veteran for a VA dental examination. All indicated tests and studies are to be performed. The claims folder must be reviewed by the dentist performing the examination. The dentist should provide an opinion as to whether it is at least as likely as not (50 percent probability or higher) that any current dental disability was causally related to service trauma, including the laceration the veteran was treated for in June 1968. Complete rationale must be provided for all opinions and conclusions reached. 11. Thereafter, readjudicate the claims on appeal. If any benefit sought on appeal is denied, issue an appropriate supplemental statement of the case and provide the veteran and his representative the opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).