Citation Nr: 1001069 Decision Date: 01/07/10 Archive Date: 01/15/10 DOCKET NO. 08-34 123 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to an increased (compensable) disability rating for service-connected bilateral hearing loss. 2. Entitlement to service connection for the purpose of establishing entitlement to VA dental treatment. 3. Entitlement to service connection for the purpose of establishing entitlement to compensation. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. K. Buckley, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from June 1951 to December 1955. This matter comes before the Board of Veterans' Appeals on appeal from rating decisions dated November 2007 and April 2008 of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. Procedural history The Veteran filed an initial claim of entitlement to service connection for bilateral hearing loss and service connection due to in-service dental trauma, for both VA treatment and compensation purposes. The Veteran's claims were denied in a November 2007 rating decision. The Veteran disagreed with the denials by filing a notice of disagreement (NOD) in January 2008. In an April 2008 rating decision, the RO granted the Veteran service connection for bilateral hearing loss and assigned a noncompensable disability rating. The Veteran disagreed with the assigned rating and perfected his appeal as to the hearing loss and dental claims by filing a timely substantive appeal [VA Form 9] in October 2008. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). See also 38 U.S.C.A. § 7107(a)(2) (West 2002). This case is REMANDED to the RO via the VA Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran if further action is required on his part. Issue not on appeal During the course of the appeal, the Veteran filed a claim of entitlement to service connection for posttraumatic stress disorder (PTSD). His claim was granted in a December 2008 rating decision; a 30 percent disability rating was assigned. As evidenced by the claims folder, a notice of disagreement was not filed. That matter therefore is not in appellate status. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) [pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA]. REMAND Reasons for remand 1. Entitlement to a compensable disability rating for service-connected bilateral hearing loss. The record reflects that the Veteran was afforded a VA audiology examination in connection with his claim in January 2009. Although the examiner provided audiometric findings, he did not comment on the functional effects caused by the hearing disability. In Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007) the United States Court of Appeals for Veterans Claims (the Court) held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Accordingly, remand of the claim for an updated VA examination consistent with the Court's holding in Martinak is required. 2. Entitlement to service connection for the purpose of establishing entitlement to VA dental treatment. 3. Entitlement to service connection for the purpose of establishing entitlement to compensation. VA compensation is only available for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150. The types of dental conditions covered are: loss of teeth due to bone loss of the body of the maxilla or the mandible due to trauma or disease such as osteomyelitis, but not periodontal disease. See 38 C.F.R. §§ 4.150, Diagnostic Code 9913; 17.161(a) (2009). 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 (i.e., gum) disease, for the sole purposes of receiving VA outpatient dental services and treatment, if certain criteria are met. See 38 U.S.C.A. § 1712 (West 2002); 38 C.F.R. §§ 3.381, 17.161 (2009). The rating activity should consider each defective or missing tooth and each disease of the teeth and periodontal tissues separately to determine whether the condition was incurred or aggravated in line of duty during active service and, when applicable, to determine whether the condition is due to combat or other in-service trauma, or whether the veteran was interned as a prisoner of war. See 38 C.F.R. § 3.381(b) (2009). In this case, VA has evidently conceded combat status in connection with the December 2008 award of service connection for PTSD. In any event, the Veteran asserts entitlement to service connection for all teeth due to a non combat event, namely cable car accident in San Francisco in March 1954. See the Veteran's statement dated January 2007. Generally, in order to establish service connection for a claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). As to the first element, current disability, an October 2008 letter from Dr. D.B. indicated that it was recently determined that the Veteran's "lower left cuspid need[ed] to be extracted which will necessitate replacing his lower bridge. The tooth has developed rapid severe bone loss. A periodontal specialist feels the tooth has a combination perio-endo problem leading to the bone loss." Although the Veteran is currently diagnosed with various dental problems, it remains unclear whether the Veteran is diagnosed with a dental condition for which disability compensation may be provided; specifically, loss of teeth due to bone loss of the body of the maxilla or the mandible due to trauma or disease such as osteomyelitis, but not periodontal disease. See 38 C.F.R. §§ 4.150, Diagnostic Code 9913; 17.161(a) (2009). As to the second element, in-service disease or injury due to dental trauma, the Board has no reason to dispute the Veteran's statement that he hit his mouth during a March 1954 cable car accident in San Francisco. This statement is corroborated by fellow airman, L.B.H., who was also involved in the accident. See the statement of L.B.H. dated February 2008. Additionally, the Veteran's December 1955 service separation examination identified teeth # 13, 31, 30, 29, 28, 20, and 19 as "restorable." Concerning element (3), evidence which is arguably in favor of the Veteran's claim is the October 2008 letter in which Dr. D.B. stated "[i]n my opinion, it is possible that the lower left cuspid may have been injured in the [1954] accident. Possibly the tooth may have an incomplete vertical root fracture or the pulp may have been damaged." However, this statement, couched as it is in terms of possibility, is too vague and uncertain to be considered to be competent medical evidence. See Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996) [medical evidence which is speculative, general or inconclusive in nature cannot support a claim]. In short, there is now of record conflicting and inadequately explained evidence as to whether or not the Veteran's currently diagnosed dental conditions are related to service. These questions cannot be answered by the Board. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) [the Board is prohibited from exercising its own independent judgment to resolve medical questions]. These matters must be addressed by a dental specialist. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2009) [a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim]. Accordingly, the case is REMANDED to the Veterans Benefits Administration (VBA) for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) 1. VBA should arrange for a VA audiological examination of the Veteran to determine the extent and severity of his service-connected bilateral hearing loss. The examiner is specifically requested to fully describe the functional effects caused by the Veteran's hearing disability. The claims folder must be made available to the examiner. The report of the examination should be associated with the Veteran's VA claims folder. 2. VBA should arrange for a dentist to examine the Veteran and review his VA claims folder. The examiner should identify the Veteran's current dental disabilities and should specifically indicate whether the Veteran has loss of teeth due to bone loss of the body of the maxilla or the mandible due to trauma or disease such as osteomyelitis. The examiner should also render an opinion, based on the entire medical history, as to whether it is at least as likely as not that any of the Veteran's currently diagnosed dental disabilities are a result of the March 1954 cable car accident. The examiner should fully explain his/her findings and conclusions. The report of the examination should be associated with the Veteran's VA claims folder. 3. After undertaking any additional development which it deems to be necessary, VBA should then readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ Barry F. Bohan 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) (2009).