Citation Nr: 0814171	
Decision Date: 04/30/08    Archive Date: 05/08/08

DOCKET NO.  05-00 566	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in No. Little 
Rock, Arkansas


THE ISSUES

1.  Entitlement to service connection for bilateral hearing 
loss.

2.  Entitlement to service connection for a dental disorder 
for compensation purposes.



REPRESENTATION

Appellant represented by:	The American Legion



ATTORNEY FOR THE BOARD

Michael Holincheck, Counsel


INTRODUCTION

The veteran served on active duty from January 1954 to 
December 1956.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a May 2004 rating decision by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
North Little Rock, Arkansas.

The veteran requested that he be afforded a video conference 
hearing when he submitted his substantive appeal in November 
2004.  The veteran was scheduled for the hearing in April 
2006.  Notice of the hearing date was provided in December 
2005.

The veteran failed to report for his hearing.  He has not 
provided evidence of good cause for his failure to report, 
and has not requested that his hearing be rescheduled.  
Accordingly, his request for a Board hearing is considered to 
be withdrawn.  38 C.F.R. § 20.704(d) (2007).  


FINDINGS OF FACT

1.  The evidence of record does not establish a current 
hearing loss disorder.

2.  During service, the veteran had a number of extractions.  
He did not suffer any dental trauma in service.  

3.  Loss of replaceable missing teeth is not a disorder for 
which service connection can be granted for compensation 
purposes.

4.  The veteran's dental condition is not manifested by 
impairment of the mandible (low jaw), loss of a portion of 
the ramus, and/or loss of a portion of the maxilla (upper 
jaw); nor were any teeth lost due to loss of substance of 
body of maxilla or mandible. 


CONCLUSIONS OF LAW

1.  The veteran does not have a hearing loss disability for 
VA compensation purposes.  38 U.S.C.A. §§ 1110, 1131, 5107 
(West 2002); 38 C.F.R. § 3.102, 3.303, 3.304, 3.307, 3.309, 
3.385 (2007).

2.  The criteria for service-connected compensation for 
dental disability are not met.  38 U.S.C.A. §§ 1110, 1131, 
1712, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.381 (2007). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Background

The veteran served on active duty from January 1954 to 
December 1956.  The veteran is seeking to establish service 
connection for a bilateral hearing loss and a dental disorder 
for the purposes of disability compensation.  The veteran 
alleges that his hearing loss was caused by acoustic trauma 
from his firing weapons on the rifle range.  The veteran 
further alleges that he suffered facial trauma wherein he 
lost 11 teeth within the first month he was in service.  

The veteran's DD 214 shows that he served as an air policeman 
following completion of his training for that specialty in 
July 1954.  

The veteran's service medical and dental records, for the 
period from December 1953 to December 1956 are associated 
with the claims folder.  He was afforded enlistment 
examinations in December 1953 and January 1954.  No hearing 
loss was noted at the time of either examination and the 
veteran did not complain of any history of hearing loss.  His 
hearing was tested by the whispered voice test.  The two 
physical examination reports also said the veteran's dental 
status was acceptable.  There were no specific dental 
findings noted on either examination report and the veteran 
made no complaints regarding his dental status on the Report 
of Medical History he submitted with his examinations.

The records show the veteran entered onto active duty on 
January 1, 1954.  He was admitted for inpatient dental work 
on January 14, 1954.  There is no indication that the dental 
work was due to trauma.  The diagnoses listed were for 
chronic periapical abscess of teeth # 4, 18, 19, 20, 30, and 
32; impacted teeth # 17, 20, and 31; and malformation of the 
alveolar ridge for teeth # 17-20 and 30-32.  The respective 
conditions were said to not be in the line of duty and to 
have existed prior to service.  Teeth # 4, 17, 18, 19, 20, 
30, 31, and 32 were extracted.  An alveolectomy of teeth # 
17-20 and 30-32 was done.  

The veteran's dental records show he was treated for caries 
of teeth # 2, 5, 7, 8, 9, and 14 in February 1954.  He was 
fitted with a partial denture for missing teeth # 17-20, 30-
32 in March 1954.  

The veteran's discharge physical examination noted his 
missing teeth and those that were restorable in December 
1956.  The veteran did not report any dental trauma on his 
Report of Medical History that was completed in conjunction 
with the examination.  

The RO wrote to the veteran in February 2004.  The RO noted 
that the veteran had not reported any source of treatment for 
his claimed disorders on his application for benefits.  He 
was asked to submit evidence in support of his claim, to 
include evidence that he had a current hearing loss and 
dental disorder.

The veteran did not respond to the letter.  His claim was 
denied by way of a rating decision dated in May 2004.  The 
veteran submitted his notice of disagreement in July 2004.  
He maintained that he had had a hearing loss disability since 
service.  He also stated that he had 11 teeth knocked out in 
service and believed that was a dental disability.

Associated with the claims folder is a report of an informal 
conference between the veteran's representative and a 
decision review officer (DRO) dated in November 2004.  The 
DRO noted that he had asked the veteran's representative to 
contact the veteran and explain the difference between a 
dental claim for compensation and one for treatment.  He also 
noted that he asked the representative to explain to the 
veteran the lack of evidence of any current hearing loss and 
to see if he wished to continue his pursuit for service 
connection.

The representative made an annotation to the report to show 
he had spoken with the veteran.  The veteran wanted to 
continue to pursue his claim for both issues.

The RO wrote to the veteran to explain that he should contact 
the VA medical center nearest him if he wanted to obtain 
treatment for his dental problems.  The letter was sent in 
November 2004.

The veteran submitted his substantive appeal in November 
2004.  He said he would provide additional evidence in 
support of his claim.  He also said he should be service 
connected for his dental claim, even if at a noncompensable 
level, so that he could get his broken plate replaced by VA.  

The veteran submitted statements from two individuals in 
March 2005.  One was from C.D.S. who said he was a neighbor 
and childhood friend of the veteran.  He stated he knew that 
the veteran had all of his teeth and good hearing when he 
went into service.  The second statement was from the 
veteran's brother.  The brother said the veteran was in top 
physical condition went he went into the service, to include 
"a full set of white teeth..."  He also said the veteran had 
excellent hearing when he entered service.  Neither 
individual commented on the veteran's current status in 
regard to any level of hearing loss or as to any dental 
trauma the veteran may have suffered in service.

II.  Analysis

The law provides that service connection may be granted for 
disability resulting from disease or injury incurred in or 
aggravated by service.  38 U.S.C.A. §§ 1110, 1131(West 2002); 
38 C.F.R. §§ 3.303, 3.304 (2007).  In addition, certain 
chronic diseases, including sensorineural hearing loss, may 
be presumed to have been incurred during service if the 
disorder becomes manifest to a compensable degree within one 
year of separation from active duty.  38 U.S.C.A. §§ 1101, 
1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007).

In addition, service connection may be granted for any 
disease diagnosed after discharge, when all of the evidence, 
including that pertinent to service, establishes the disease 
was incurred in service.  38 C.F.R. § 3.303(d).

Generally, service connection requires (1) medical evidence 
of a current disability, (2) medical evidence, or in certain 
circumstances lay testimony, of in-service incurrence or 
aggravation of an injury or disease, and (3) medical evidence 
of a nexus between the current disability and the in-service 
disease or injury.  Hickson v. West, 12 Vet. App. 247, 253 
(1999); accord Caluza v. Brown, 7 Vet. App. 498 (1995).

For purposes of a hearing loss claim, impaired hearing will 
be considered a disability for VA purposes when the auditory 
threshold in any of the frequencies 500, 1,000, 2,000, 3,000, 
4,000 Hertz is 40 decibels or greater, or when the auditory 
thresholds for at least three of the frequencies 500, 1,000, 
2,000, 3,000, or 4,000 Hertz are 26 decibels or greater, or 
when speech recognition scores using the Maryland CNC Test 
are less than 94 percent.  38 C.F.R. § 3.385 (2007).

In order for service connection to be granted for a claimed 
disability, there must be evidence of the current existence 
of such claimed disability.  See Rabideau v. Derwinski, 2 
Vet. App. 141, 144 (1992).

A.  Hearing Loss

Exposure to noise from the firing of weapons can be conceded 
in this case given the veteran's military occupation in 
service.  See 38 C.F.R. §38 U.S.C.A. § 1154(a) (West 2002).  
It would be consistent with the type of duties he would 
perform as an air policeman.  However, despite the concession 
of the noise exposure, it does not serve to establish that he 
had a hearing loss in service, nor does it provide evidence 
of a current disability and a nexus between a current 
disability and the veteran's noise exposure in service.  

The veteran provided no evidence of a current hearing loss 
disability, other than his own allegations.  He has not 
identified any source of treatment or evaluation in the 
nearly 50 years since his military service.  He was asked to 
either provide such evidence or identify a source so that the 
RO could obtain the records but he failed to respond to the 
request.  Further, the two lay statements he submitted in 
support of his claim did not say the veteran had any current 
difficulty in hearing.  The statements attested to the 
veteran's hearing as the time he entered service, nearly 50 
years prior to his current claim.  Neither individual 
provided any comment on the current status of the veteran's 
hearing.  Finally, the evidence does not support a finding 
that a hearing loss disability was manifest to a compensable 
degree within one year of the veteran's discharge from 
service.

The veteran has not submitted any evidence in support of his 
claim other than his own statements that he currently has a 
hearing loss and that he believes the hearing loss is 
directly related to noise exposure from firing small arms in 
service.  The Board notes that lay evidence in the form of 
statements or testimony of the veteran is competent to 
establish evidence of symptomatology where symptoms are 
capable of lay observation.  See Charles v. Principi, 16 Vet. 
App. 370, 374 (2002); Layno v. Brown, 6 Vet. App. 465, 469 
(1994); see also Buchanan v. Nicholson, 451 F.3d. 1331.  The 
veteran is competent to say he has difficulty in hearing.  He 
is not competent to establish that he has a hearing loss that 
would satisfy the requirements of 38 C.F.R. § 3.385 or relate 
any hearing loss that may be present to any etiology.  See 
Espiritu v. Derwinski, 2 Vet. App. 492 (1992); see also 
Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir 2007) (holding 
that a layperson may provide competent evidence to establish 
a diagnosis where the lay person is "competent to identify 
the medical condition").  This can only be done by a 
qualified medical professional.

In order for service connection to be granted for a claimed 
disability, there must be evidence of the current existence 
of such claimed disability.  See Rabideau, supra.  The 
benefit claimed in this case requires the presence of a 
hearing loss disability that satisfies the criteria found at 
38 C.F.R. § 3.385.  The Board concludes that the veteran does 
not have a current hearing loss disability.  Without any 
current clinical evidence confirming the presence of hearing 
loss disorder service connection must be denied.  See Brammer 
v. Derwinski, 3 Vet. App. 223 (1992) (current disability is a 
prerequisite to an award of service connection).  

B.  Dental

Under current VA regulations, compensation is only available 
for certain types of dental and oral conditions listed under 
38 C.F.R. § 4.150 (2007), such as impairment of the mandible, 
loss of a portion of the ramus, and loss of a portion of the 
maxilla.  Compensation is available for loss of teeth only if 
such is due to loss of substance of body of maxilla or 
mandible.  Otherwise, a veteran may be entitled to service 
connection for dental conditions including treatable carious 
teeth, replaceable missing teeth, dental or alveolar 
abscesses, and periodontal disease, for the sole purpose of 
receiving VA outpatient dental services and treatment, if 
certain criteria are met.  See 38 U.S.C.A. § 1712; 38 C.F.R. 
§§ 3.381, 17.161.

With respect to the veteran's current claim, the Board finds 
there is no basis for award of service-connected disability 
compensation for a dental disorder.  The veteran contends 
that he lost 11 teeth due to trauma within his first month of 
service.  He further contends that he lost additional teeth 
as a result of treatment provided for the trauma.

The unequivocal evidence is that the veteran had periodontal 
disease and impacted teeth on his entry into service.  He was 
seen for treatment within two weeks of his active duty and a 
number of teeth were pulled and he was fitted with a partial 
plate.  The dental records well document the reasons for the 
extractions.  There is no mention of any trauma at any time.  
The objective evidence of record does not support his 
contentions of trauma of any type.  Moreover, the term 
"trauma" does not include the intended effects of treatment 
provided during the veteran's military service.  See 
VAOPGCPREC 5-97.  

The veteran is not claiming impairment of the mandible, loss 
of a portion of the ramus, or loss of a portion of the 
maxilla due to service, nor is he claiming that any loss of 
teeth were the result of loss of substance of maxilla or 
mandible.  38 C.F.R. § 4.150.  Rather he is claiming the loss 
of his teeth due to trauma in service.  The dental evidence 
of record does not support his contentions and the 
regulations do not provide disability compensation for a 
dental condition other than those found under 38 C.F.R. § 
4.150.  38 C.F.R. § 3.381.  

Although the veteran is competent to provide evidence of what 
he believes happened during his service, the actual dental 
records from his military service provide the more probative 
evidence in this case.  They clearly show the situation to be 
different than what the veteran recollects.  There was no 
trauma to cause his loss of teeth.

In conclusion, the Board finds that the preponderance of the 
evidence is against a claim for service connection for a 
bilateral hearing loss or dental disorder for disability 
compensation purposes.  In reaching this conclusion, the 
Board has considered the applicability of the benefit of the-
doubt doctrine.  However, as the preponderance of the 
evidence is against the veteran's claim, that doctrine is not 
applicable.  See 38 U.S.C.A § 5107(b) (West 2002); 38 C.F.R. 
§ 3.102 (2007); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 
(1990).   

The Veterans Claims Assistance Act (VCAA), codified in 
pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & 
Supp 2007)), and the pertinent implementing regulation, 
codified at 38 C.F.R. § 3.159 (2007), provides that VA will 
assist a claimant in obtaining evidence necessary to 
substantiate a claim.  They also require VA to notify the 
claimant and the claimant's representative, if any, of any 
information, and any medical or lay evidence, not previously 
provided to the Secretary that is necessary to substantiate 
the claim.  As part of the notice, VA is to specifically 
inform the claimant and the claimant's representative, if 
any, of which portion, if any, of the evidence is to be 
provided by the claimant and which part, if any, VA will 
attempt to obtain on behalf of the claimant.  In addition, VA 
must also request that the claimant provide any evidence in 
the claimant's possession that pertains to the claim.

During the pendency of this appeal, the Court, issued a 
decision in March 2006 in the case of Dingess v. Nicholson, 
19 Vet. App. 473 (2006), which held that the VCAA notice 
requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 
3.159(b) apply to all five elements of a service connection 
claim.  Those five elements include: 1) veteran status; 2) 
existence of a disability; (3) a connection between the 
veteran's service and the disability; 4) degree of 
disability; and 5) effective date of the disability.

In the present case, the veteran's claim was received in 
December 2003.  The RO wrote to the veteran in February 2004.  
The RO advised the veteran of the evidence required to 
substantiate his claim for service connection.  The veteran 
was advised to submit evidence showing that he had a hearing 
loss and dental disorder since service.  The veteran was 
given examples of the types of information that would help to 
substantiate his claim.  He was further advised to submit 
evidence showing a diagnosis and treatment for the claimed 
disabilities.  The letter also advised the veteran of the 
information required from him to enable VA to obtain evidence 
on his behalf, the assistance that VA would provide to obtain 
evidence on his behalf, and that he should submit such 
evidence or provide VA with the information necessary for VA 
to obtain such evidence on his behalf.  The veteran was asked 
to submit any medical evidence in his possession.  

The veteran was also informed of the evidence of record.  He 
was further informed that his service medical records would 
be obtained.  Finally, he was told to identify any other 
evidence or information that he thought would help to support 
his claim.

The veteran did not respond to the letter.  His claim was 
adjudicated in May 2004.  The veteran submitted his 
substantive appeal in November 2004.  He said that he would 
submit additional lay statements in support of his claim.

The veteran did submit the two lay statements discussed, 
supra, in March 2005.  The claim for service connection for 
bilateral hearing loss and a dental disorder was re-
adjudicated and denied.  The veteran was issued a 
supplemental statement of the case (SSOC) that informed him 
of the denial and the basis for the decision in October 2005.  

The veteran was not provided with the notice outlined by the 
Court in Dingess.

The veteran has not disputed the contents of the VCAA notice 
in this case.  A notice error is presumed prejudicial to the 
claimant unless it is demonstrated that (1) any defect in 
notice was cured by actual knowledge on the part of the 
claimant, (2) that a reasonable person could be expected to 
understand from the notice provided what was needed, or (3) 
that a benefit could not possibly have been awarded as a 
matter of law.  Sanders v. Nicholson, 487 F.3d. 881, 889-891 
(Fed. Cir. 2007). 

The presumption of any prejudice is overcome in this case.  
The veteran has actual knowledge of what is required to 
establish service connection for his hearing loss and dental 
disorder.  He provided information as to why he believed he 
had a hearing loss in service by relating it to small arms 
fire on the firing range.  He also noted the dental treatment 
he received early in his military service.  Although he 
claimed the dental treatment was due to trauma, he pointed to 
the only evidence that would apply to his dental claim that 
was contained in his military records.

The veteran submitted statements in support of his claim for 
service connection.  He provided statements that his hearing 
was normal when he entered service and that he had all of his 
teeth.  Moreover, the veteran has not been prohibited from 
meaningful participation in the adjudication of his claim 
such that it affects the essential fairness of the 
adjudication.  As noted he has responded to the decisions in 
his case and he has submitted statements in support of his 
claim.  See Sanders, 487 F.3d. at 889.  

As the Board concludes that the preponderance of the evidence 
is against the veteran's claim for service connection any 
questions as to the appropriate disability rating or 
effective date to be assigned are rendered moot.  The Board 
finds no prejudice to the veteran in proceeding with the 
issuance of a final decision.  See Bernard v. Brown, 4 Vet. 
App. 384, 394 (1993).

The Board also finds that VA has adequately fulfilled its 
obligation to assist the veteran in obtaining the evidence 
necessary to substantiate his claim.  All available evidence 
pertaining to the veteran's claim has been obtained.  The 
evidence developed in this claim included the veteran's 
service medical and dental records.  He did not identify any 
other source of medical evidence that could be obtained in 
this case.  He did not submit any medical evidence in support 
of his claim.  The veteran submitted his own and supporting 
statements in support of his claim.  He was scheduled for a 
video conference hearing but failed to report.  He did not 
seek to have the hearing re-scheduled.  

The Board finds that VA has satisfied its duty to notify and 
assist.  The veteran has not identified any other pertinent 
evidence, not already of record, which would need to be 
obtained for a fair disposition of this appeal.  The Board is 
also unaware of any such evidence.

The Board has considered whether a VA examination was 
required in this case under the duty to assist provisions 
codified at 38 U.S.C.A. § 5103A(d) and by regulation found at 
38 C.F.R. § 3.159(c)(4).  See McLendon v. Nicholson, 20 Vet. 
App. 79, 81 (2006).  The duty to assist under 38 U.S.C.A. § 
5103A(d) and 38 C.F.R. § 3.159(c)(4) is triggered when it is 
necessary to obtain an examination to make a decision in the 
case.  Factors to consider whether an examination is 
necessary include whether there is evidence of a current 
disability, and whether there is evidence that the disability 
may be associated with the veteran's military service but 
there is not sufficient medical evidence to make a decision 
on the claim.  Id.

The evidence of record is such that the duty to obtain a 
medical examination is not triggered in this case.  The 
service medical and dental records do not reflect evidence of 
a hearing loss or dental disorder from trauma.  The military 
records clearly document the status of the veteran's dental 
condition in service.  There is no post-service medical 
evidence.  Thus the only evidence of any current hearing loss 
disability are the veteran's lay statements.  Moreover, there 
is no other evidence of record that would relate any claimed 
hearing loss to the veteran's military service.  Thus, there 
is no requirement to obtain a VA medical examination in this 
case.  See McLendon, 20 Vet. App. at 85-86; see also Wells v. 
Principi, 326 F.3d 1381 (Fed. Cir. 2003) (a veteran is 
required to show some causal connection between his 
disability and his military service).  The Board finds that 
VA has complied, to the extent required, with the duty-to-
assist requirements found at 38 U.S.C.A. § 5103A and 38 
C.F.R. § 3.159(c)-(e).


ORDER

Entitlement to service connection for bilateral hearing loss 
is denied.

Entitlement to service connection for a dental disorder, for 
purposes of compensation, is denied.



____________________________________________
S. S. TOTH 
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs