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 Accordingly, his request for a Board hearing is considered to be withdrawn. 38 C.F.R. § 20.704(d) (2007).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