Citation Nr: 1003158 Decision Date: 01/21/10 Archive Date: 02/01/10 DOCKET NO. 05-06 612 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for tooth loss. 2. Entitlement to service connection for bilateral hearing loss. 3. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a back disability. 4. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a right shoulder disability. 5. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for traumatic brain disease, claimed as residuals of a head injury. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran and N.U. ATTORNEY FOR THE BOARD K. K. Buckley, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from February 1963 to February 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. Procedural history In a March 1992 rating decision, service connection was denied for injuries to the head, back, and right shoulder. The Veteran was notified of that decision and of his appeal rights by letter dated March 1992. In May 1993, the RO determined that he had not filed a timely notice of disagreement as to the March 1992 rating decision. In July 1996, the RO declined to reopen the Veteran's claims of entitlement to service connection for a back disability, a right shoulder disability, and traumatic brain disease (claimed as a residual of head injury). In August 2003, the Veteran filed claims of entitlement to service connection for loss of teeth and for bilateral hearing loss. He also filed to reopen his previously denied claims of entitlement to service connection for a back disability, a right shoulder disability, and traumatic brain disease. The Veteran's claims were denied in the December 2003 rating decision. The Veteran disagreed with the decision and perfected his appeal by filing a timely substantive appeal [VA Form 9] in February 2005. In November 2005, the Veteran presented sworn testimony during a personal hearing in Seattle, Washington, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims folder. In a September 2007 Board decision, the claim was remanded for further evidentiary development. The VA Appeals Management Center (AMC) continued the previous denials in a March 2009 supplemental statement of the case (SSOC). The Veteran's VA claims folder has been returned to the Board for further appellate proceedings. Clarification of issues on appeal The claimed back disability, right shoulder disability and traumatic brain disease have been referred to at various times as a "skeletal disorder", a "right arm disability" and a "head injury", respectively. It is clear from the record that the Veteran is seeking service connection for a back disability, a right shoulder disability and traumatic disease, and the issues have been so characterized by the Board. Issues not on appeal The September 2007 Board decision denied the Veteran's claims of entitlement to service connection for disfigurement of the head and face, nervous system disorder, and a psychiatric disorder other than posttraumatic stress disorder. To the Board's knowledge, no appeal was taken. The Board's decision is final, and those issues will be addressed no further herein. See 38 C.F.R. § 20.1100 (2009). FINDINGS OF FACT 1. The competent medical evidence does not show that the Veteran has experienced loss of teeth resulting from in- service trauma. 2. The competent medical evidence of record does not support a finding that the Veteran's currently diagnosed bilateral hearing loss is due to his military service. 3. In a July 1996 decision, the RO declined to reopen the Veteran's previously denied claims of entitlement to service connection for back disability, right shoulder disability, and traumatic brain disease (head injury). 4. Evidence submitted since the July 1996 rating decision is cumulative or redundant of the evidence of record at the time of the prior final denials of the claims sought to be reopened, and does not raise a reasonable possibility of substantiating the claims of entitlement to service connection for back disability, right shoulder disability, or traumatic brain disease. CONCLUSIONS OF LAW 1. The criteria for service connection for dental trauma, to include for treatment purposes, have not been met. 38 U.S.C.A. §§ 1110, 1131, 1721 (West 2002); 38 C.F.R. §§ 3.303, 3.381, 4.150, 17.161 (2009). 2. Bilateral hearing loss was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2009). 3. The July 1996 RO decision declining to reopen the previously denied claims of entitlement to service connection for back disability, right shoulder disability, and traumatic brain disease is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2009). 4. Since the July 1996 rating decision, new and material evidence has not been received, and the claims of entitlement to service connection for back disability, right shoulder disability, and traumatic brain disease are not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks service connection for tooth loss and bilateral hearing loss. The Veteran also seeks to reopen previously denied claims of entitlement to a back disability, a right shoulder disability, and traumatic brain disease. In essence, the Veteran contends that all of his claimed disabilities are due to a documented in-service incident in which the hatch cover of an armored personnel carrier struck him in the face. He further contends that his current hearing loss is due to in- service noise exposure. Although it appears that the RO reopened the Veteran's claims of entitlement to service connection for back disability, right shoulder disability, and traumatic brain disease in the December 2003 rating decision, the question of whether new and material evidence has been received is one that must be addressed by the Board, notwithstanding a decision favorable to the Veteran that may have been rendered by the RO. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) [before considering a previously adjudicated claim, the Board must determine that new and material evidence was presented or secured for the claim, making RO determination in that regard irrelevant]; see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) [the Board has a jurisdictional responsibility to consider whether it was proper for the RO to reopen a previously denied claim]. As such, the Board will first consider whether new and material evidence has been received sufficient to reopen the claims currently on appeal. The Board will discuss certain preliminary matters. The issues on appeal will then be analyzed and a decision rendered. Stegall concerns In September 2007, the Board remanded the case in order for the agency of original jurisdiction (AOJ) to provide the Veteran with appropriate notice pursuant to the decision of the United States Court of Appeals for Veterans Claims (Court) in Kent v. Nicholson, 20 Vet. App. 1 (2006) as to his new and material evidence claims. The AOJ was also to obtain a medical nexus opinion as to the Veteran's tooth loss claim and schedule the Veteran for an audiological examination in order to determine the existence and etiology of the Veteran's claimed hearing loss. The claims were then to be readjudicated. As will be discussed below, the record indicates that the Veteran was provided with the requisite Kent notice in a letter from the AMC dated December 2007. Subsequently, a medical nexus opinion was obtained as to the tooth loss claim, and the Veteran was afforded a VA audiological examination as to his bilateral hearing loss claim. The reports of which were obtained and associated with the Veteran's claims folder. The Veteran's claims were readjudicated in a SSOC dated March 2009. Accordingly, the Board's remand instructions have been complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist a claimant in the development of a claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). For a claim to reopen, such as the back disability, right shoulder disability, and traumatic brain disease claims, the VCAA appears to have left intact the requirement that a veteran must first present new and material evidence in order to reopen a previously and finally denied claim under 38 U.S.C.A. § 5108 before the Board may determine whether the duty to assist is fulfilled and proceed to evaluate the merits of that claim. It is specifically noted that nothing in the VCAA shall be construed to require VA to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in 38 U.S.C.A. § 5108. See 38 U.S.C.A. § 5103A(f) (West 2002). Once the claim is reopened, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the veteran's claim for benefits under a law administered by the Secretary, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. See 38 U.S.C.A. § 5103A (West 2002). Therefore, the VCAA duty to notify applies to the issues on appeal; the standard of review and duty to assist does not apply to the back disability, right shoulder disability, and traumatic brain disease claims unless they are reopened. See Holliday v. Principi, 14 Vet. App. 280 (2000) [the Board must make a determination as to the applicability of the various provisions of the VCAA to a particular claim]. The Board has carefully considered the provisions of the VCAA and the implementing regulations in light of the record on appeal, and for reasons expressed immediately below finds that the development of the issue has proceeded in accordance with the provisions of the law and regulations. Notice The VCAA requires VA to notify the veteran and the veteran's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim. As part of this notice, VA is to specifically inform the veteran and the veteran's representative, if any, of which portion, if any, of the evidence is to be provided by the veteran and which part, if any, VA will attempt to obtain on behalf of the veteran. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant, but not mentioning who is responsible for obtaining such evidence, did not meet the standard erected by the VCAA]. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court specifically addressed VCAA notice requirements in the context of a veteran's request to reopen a previously and finally denied claim. The Court found that VA must notify a claimant of the evidence and information that is necessary to reopen the claim, and must provide notice that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were not found in the previous denial. After having carefully reviewed the record, the Board has concluded that the notice requirements of the VCAA have been satisfied with respect to whether the Veteran submitted new and material evidence as to the back disability, right shoulder, and traumatic brain disease claims. After having carefully reviewed the record, the Board has concluded that the notice requirements of the VCAA have been satisfied with respect to the issues on appeal. The Board observes that the Veteran was informed of the evidentiary requirements for service connection in letters dated September 2003, October 2005, and December 2007. The letters indicated that in order for service connection to be granted there must be evidence of an injury in military service or a disease that began in or was made worse during military service, or that there was an event in service that caused an injury or disease; a current physical or mental disability shown by medical evidence; and a relationship between the disability and an injury, disease, or event in military service. With respect to the back disability, right shoulder, and traumatic brain disease claims, the December 2007 letter indicated new and material evidence was required to reopen the claim, and specifically noted "[t]o qualify as new, the evidence must be in existence and be submitted to VA for the first time. . . In order to be considered material, the additional existing evidence must pertain to the reason your claim was previously denied." The letter thus notified the Veteran that evidence sufficient to reopen his previously denied claim must be "new and material," closely mirroring the regulatory language of 38 C.F.R. § 3.156(a). Moreover, the December 2007 letter informed the Veteran of the reason his back disability and right shoulder claims were previously denied: "[y]our claim was previously denied because your service medical records dating from 1963-1966 are negative for a back and right shoulder disorder. Therefore, the evidence you submit must relate to this fact." The letter also informed the Veteran of why his traumatic brain disease claim was previously denied, "[y]our claim was previously denied for traumatic brain disease because the service medical records do not show treatment or diagnosis for traumatic brain disorder and no other medical evidence has been submitted showing that you are currently diagnosed with this condition. Service connection for traumatic brain disease might be granted if you were to submit medical evidence showing that you are currently diagnosed with a chronic disability which either began in military service or was caused by your military service. Therefore, the evidence you submit must relate to this fact." As such, the Veteran was thoroughly advised of the basis for the previous denials as well as what evidence would be considered new and material and therefore sufficient to reopen the claims, thus satisfying Kent concerns. Crucially, the RO informed the Veteran of VA's duty to assist him in the development of his claims in the above-referenced VCAA letters. Specifically, the September 2003, October 2005, and December 2007 letters stated that VA would assist the Veteran in obtaining relevant records from any Federal agency, to include military records, Social Security Administration (SSA) records and medical records at VA hospitals. The Veteran was also advised in the letters that a VA examination would be scheduled if necessary to make a decision on his claims. With respect to records from private doctors and hospitals, the VCAA letters informed the Veteran that VA would make reasonable efforts to request such records. The December 2007 VCAA letter emphasized: "If the evidence is not in your possession, you must give us enough information about the evidence so that we can request it from the person or agency that has it. If the holder of the records declines to give it to us, asks for a fee to provide it, or VA otherwise cannot get the evidence, we will notify you. It is your responsibility to make sure we receive all requested records that are not in the possession of a Federal department or agency." [Emphasis as in the original]. The December 2007 specifically requested, "[i]f there is any other evidence or information that you think will support your claim, please let us know." This complies with the "give us everything you've got" provision formerly contained in 38 C.F.R. § 3.159(b) in that it informed the Veteran that he could submit or identify evidence other than what was specifically requested by the RO. [The Board observes that 38 C.F.R. § 3.159 was recently revised, effective as of May 30, 2008. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). The final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request the claimant to provide any evidence in the claimant's possession that pertains to the claims.] The Board recognizes that, according to Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004), proper VCAA notice must "precede an initial unfavorable [agency of original jurisdiction (AOJ)] decision on a service connection claim." Here, complete VCAA notice was not provided until December 2007, years after the December 2003 RO decision that is the subject of this appeal. Crucially, the Veteran's claims were readjudicated in the March 2009 SSOC, after he was provided with the opportunity to submit additional evidence and argument in support of his claims and to respond to the VCAA notice. Therefore, the essential fairness of the adjudication was not affected. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) [a timing error may be cured by a new VCAA notification followed by a readjudication of the claim]. The Veteran has pointed to no prejudice or due process concerns arising out of the timing of the VCAA notice. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (1) veteran status [not at issue here]; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. Therefore, upon receipt of an application for a service connection claim, section 5103(a) and section 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Veteran was provided specific notice of the Dingess decision in the December 2007 letter from the RO, which detailed the evidence considered in determining a disability rating, including "nature and symptoms of the condition; severity and duration of the symptoms; and impact of the condition and symptoms on employment." The Veteran was also advised in the letter as to examples of evidence that would be pertinent to a disability rating, such as on-going treatment records, recent Social Security determinations, and statements from employers as to job performance and time lost due to service-connected disabilities. With respect to effective date, the December 2007 letter instructed the Veteran that two factors were relevant in determining effective dates of increased rating claims: when the claims were received and when the evidence "shows a level of disability that supports a certain rating under the rating schedule." The Veteran was also advised in the letter as to examples of evidence that would be pertinent to an effective date determination, such as information about continuous treatment or when treatment began, service medical records the veteran may not have submitted, and reports of treatment while attending training in the Guard or Reserve. Accordingly, the Veteran received proper notice of disability rating and effective date pursuant to Dingess. Moreover, there is no timing problem as to Dingess notice since, as indicated above, the Veteran's claims were readjudicated in the March 2009 SSOC. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Given that there is no indication that there exists any evidence which could be obtained to affect the outcome of this case, no further VCAA notice is necessary. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice not required where there is no reasonable possibility that additional development will aid the veteran]. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate claims for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009). In the instant case, the Board finds reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his service connection claims, and that there is no reasonable possibility that further assistance would aid in substantiating them. The evidence of record includes the Veteran's service treatment records, service personnel records, the Veteran's statements, and the reports of VA and private medical treatment. As indicated above, the Veteran was afforded a VA examination in February 2009 as to his hearing loss claim and a medical nexus opinion was obtained in January 2009 as to his tooth loss claim. The February 2009 VA examination report and January 2009 medical opinion reflects that the examiners thoroughly reviewed the Veteran's past medical history, documented his medical conditions, and rendered an opinions which appears to be consistent with the remainder of the evidence of record. The Board therefore concludes that the VA medical opinions are adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2009); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) [holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate]. In short, the Board has carefully considered the provisions of the VCAA, in light of the record on appeal and, for the reasons expressed above, finds that the development of these issues has been consistent with said provisions. The Veteran has been accorded ample opportunity to present evidence and argument in support of his claims. See 38 C.F.R. § 3.103 (2009). He has retained the services of a representative and, as indicated above, he testified at a personal hearing before the undersigned Veterans Law Judge. Accordingly, the Board will proceed to a decision on the merits as to the issues on appeal. 1. Entitlement to service connection for tooth loss. Relevant law and regulations Service connection - in general In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2009). In order to establish service connection for the 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). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection - dental claims Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease will be considered service connected solely for the purpose of establishing eligibility for outpatient dental treatment as provided in 38 C.F.R. § 17.161. The rating activity will 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 the line of duty during active service. When applicable, the rating activity will 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(a) and (b) (2009). In determining service connection, the condition of teeth and periodontal tissues at the time of entry into active duty will be considered. Treatment during service, including filling or extraction of a tooth, or placement of a prosthesis, will not be considered evidence of aggravation of a condition that was noted at entry, unless additional pathology developed after 180 days or more of active service. See 38 C.F.R. § 3.381(c) (2009). The following principles apply to dental conditions noted at entry and treated during service: (1) Teeth noted as normal at entry will be service connected if they were filled or extracted after 180 days or more of active service.; (2) Teeth noted as filled at entry will be service connected if they were extracted or if the existing filling was replaced after 180 days or more of active service; (3) Teeth noted as carious but restorable at entry will not be service connected on the basis that they were filled during service. However, new caries that developed 180 days or more after such a tooth was filled will be service connected; (4) Teeth noted as carious but restorable at entry, whether or not filled, will be service connected if extraction was required after 180 days or more of active service; (5) Teeth noted at entry as nonrestorable will not be service connected regardless of treatment during service; (6) Teeth noted as missing at entry will not be service connected regardless of treatment during service. See 38 C.F.R. § 3.381(d) (2009). The following will not be considered service connected for treatment purposes: (1) calculus; (2) acute periodontal disease; (3) third molars, unless disease or pathology of the tooth developed after 180 days or more of active service or was due to combat or in service trauma; (4) impacted or malposed teeth and other developmental defects unless disease or pathology of these teeth developed after 180 days or more of active service. See 38 C.F.R. § 3.381(e) (2009). Teeth extracted because of chronic periodontal disease will be service connected only if they were extracted after 180 days or more of active service. See 38 C.F.R. § 3.381(f) (2009). Congenital or developmental defects such as malocclusion are not diseases or injuries within the meaning of applicable legislation concerning service connection. See 38 C.F.R. §§ 3.303(c), 4.9, 4.127 (2009); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996) and cases cited therein. Standard of review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2009). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Veteran contends that he suffered from tooth loss because of an incident in service when he was hit by a hatch cover of an armored personnel carrier. As has been discussed in the law and regulations section above, service connection may be granted for dental disabilities compensation purposes if the dental condition is the result of trauma; and for treatment purposes under certain circumstances stated in the regulation. Although the Veteran has perfected an appeal as to a claim for service connection for a dental disorder, the Court has specifically held that a claim for service connection for a dental disorder is also a claim for VA outpatient dental treatment. See Mays v. Brown, 5 Vet. App. 302 (1993). Accordingly, the Board will address both service connection for compensation and service connection for outpatient treatment purposes. Service connection for compensation purposes In analyzing the claim, the Board will employ a Hickson analysis. As was detailed above, in order to establish service connection, there must be (1) medical evidence of a current disability; (2) evidence of in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between (1) and (2). See Hickson, supra. With respect to Hickson element (1), current disability, an August 2003 VA treatment record indicated that the Veteran has had full upper and lower dentures since 1993. Accordingly, element (1) is satisfied. Concerning Hickson element (2), in-service injury (dental trauma), the Veteran's service treatment records show that in March 1964 he was hit on the lower lip by a hatch cover, which caused a laceration of the lower lip and a loosening of his lower incisors. As such, element (2) is arguably satisfied. Turning to crucial Hickson element (3), medical nexus, the competent medical evidence of record indicates that the Veteran's current tooth loss is not related to his in-service dental trauma. Specifically, in her January 2009 opinion, the VA examiner concluded, "[a]fter review of the records, of medical records, entrance examination, dental records, and dental exit examination it is determined that it is unlikely that subsequent loss of teeth [was] related to this incident that was incurred during military service at which time the lip was lacerated." The January 2009 examiner further stated that an October 1964 dental record documenting the removal of tooth #30 indicated that such removal was as a result of caries. The January 2009 VA medical opinion appears to have been based upon thorough review of the record and thoughtful analysis of the Veteran's entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"]. The records show that no teeth were lost in service, aside from the tooth which was extracted due to dental caries. There is no objective evidence that the Veteran's post-service loss of teeth was related to the hatch cover incident in service. The Veteran has not submitted a medical opinion to contradict the conclusion of the January 2009 VA examiner. As was explained in the VCAA section above, the Veteran has been accorded ample opportunity to present competent medical evidence in support of his claim. He has failed to do so. See 38 U.S.C.A. § 5107(a) (West 2002) [it is the claimant's responsibility to support a claim for VA benefits]. To the extent that the Veteran or his representative is contending that the Veteran's tooth loss is related to his military service, neither is competent to comment on medical matters such as etiology. See Espiritu v. Derwinski, 2 Vet. App. 491, 494-495 (1992); see also 38 C.F.R. § 3.159(a)(1) (2009) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. Accordingly, the statements offered by the Veteran in support of his own claim are not competent medical evidence and do not serve to establish medical nexus. Hickson element (3), medical nexus, has not been satisfied, and the Veteran's claim fails on this basis. Service connection for VA treatment purposes Veterans having a service-connected noncompensable dental condition determined to be the result of combat wounds or other service trauma will be eligible for VA dental care on a Class II(a) basis. See 38 U.S.C.A. § 1712(b)(1)(C) (West 2002); 38 C.F.R. § 17.161(c) (2009). As has been discussed in some detail above, the Board finds that the Veteran's current tooth loss is unrelated to the in- service dental trauma. A veteran is also entitled to VA outpatient dental treatment if he qualifies under one of the other categories outlined in 38 U.S.C.A. § 1712 and 38 C.F.R. § 17.161. However, the evidence does not demonstrate that the Veteran can avail himself of any of the other categories by which VA dental treatment can be provided. Class II(b) and Class II(c) require that the claimant be a prisoner of war, a status not accruing to the Veteran. See 38 C.F.R. § 17.161(d), (e) (2009). Class IIR (Retroactive) eligibility requires that a prior application for VA dental treatment have been made and such treatment have been provided. See 38 C.F.R. § 17.161(f) (2009). Review of the record does not show that the Veteran had sought VA dental treatment prior to the current claim. Additionally, there is no evidence demonstrating that the Veteran has a dental condition that impairs or aggravates a service-connected disability (Class III). See 38 C.F.R. § 17.161(g) (2009). The Veteran is not a Chapter 31 vocational rehabilitation trainee (Class V). See 38 C.F.R. § 17.161(h), (i) (2009). He is also not receiving, or is scheduled to receive, VA care and treatment under 38 U.S.C.A. Chapter 17 (Class VI). See 38 C.F.R. § 17.161(j) (2009). In short, the Veteran does not fall into any of the categories for entitlement to VA outpatient treatment. Therefore, the Board finds that the criteria for service connection for a dental disorder for the purpose of entitlement to VA outpatient dental treatment have not been met. Conclusion For the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a dental disorder for compensation or VA dental treatment purposes. The benefits sought on appeal are accordingly denied. 2. Entitlement to service connection for bilateral hearing loss. Relevant law and regulations The law and regulations pertaining generally to service connection and standard of review have been set forth above and will not be repeated here. Service connection - hearing loss For certain chronic disorders, including sensorineural hearing loss, service connection may be presumed to have been incurred in service if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C.A. § 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2009). Service connection for impaired hearing shall only be established when hearing status, as determined by audiometric testing, meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels), over a range of frequencies (in Hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385 (2009). For the purposes of applying the law administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385 (2009). Continuity of symptomatology In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2009). Analysis The Veteran is claiming entitlement to service connection for bilateral hearing loss, which he contends is due to his active military service. See, e.g., the Veteran's statement dated April 2009. As noted above, in order for service connection to be granted, three elements must be present: (1) a current disability; (2) in-service incurrence or aggravation of disease or injury; and (3) medical nexus. See Hickson, supra. It is undisputed that the Veteran is currently diagnosed with bilateral hearing loss, as is evidenced by the February 2009 VA audiology examination. Hickson element (1) is, therefore, satisfied. With regard to Hickson element (2), evidence of an in-service incurrence of a disease or injury causing hearing loss, the Board will address disease and injury separately. Concerning in-service disease, a review of service treatment records reveals no evidence of hearing loss. Audiograms conducted upon the Veteran's entrance into service in February 1963 and separation from service in December 1965 demonstrated normal hearing. Further, the record does not reflect medical evidence showing any manifestations of hearing loss during the one-year presumptive period after separation from service. See 38 C.F.R. §§ 3.307, 3.309(a) (2009). Crucially, the first diagnosed hearing loss of record was documented in March 1992, over twenty-five years after the Veteran's release from active duty. See the VA treatment record dated March 1992. Accordingly, Hickson element (2) is not met with respect to disease. With respect to in-service injury, a review of the record shows that the Veteran has asserted two theories of in- service injury, the first being head trauma and the second being exposure to high levels of noise. As to the head trauma, as has been discussed above service treatment records show that in March 1964 the Veteran was hit in the lower lip with a hatch cover, resulting in a laceration to the lower lip and loosening of the lower incisors. There was no indication in the service treatment records of any injury to the ears, or any resulting hearing loss. With respect to noise exposure, service records show that the Veteran's principal duty from September 1963 through 1965 was as a gunner. Accordingly, in-service incurrence of injury, that is to say hazardous noise exposure, has arguably been shown This is sufficient to satisfy Hickson element (2). Turning to crucial Hickson element (3), medical nexus, the only competent medical opinion of record concerning the issue of medical nexus is the report of the February 2009 VA examiner. In rendering his medical opinion, the VA examiner concluded that the Veteran's "hearing loss is symmetric, of a sensorineural type, gradually sloping from mild in the low to mid ranges to moderate by 4 kHz. It is not typical of damage due to head injury or noise exposure. Considering this record, therefore, [the Veteran's] hearing loss with tinnitus is less likely as not due to military service ending in 1965, and more likely due to aging or illness in the intervening 40 years." The February 2009 VA medical opinion appears to have been based upon thorough review of the record and thoughtful analysis of the Veteran's entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"]. Moreover, the February 2009 VA opinion appears to be consistent with the Veteran's medical history, which is absent any indication of hearing loss until March 1992. The Veteran has not submitted a medical opinion to contradict the conclusion of the February 2009 VA examiner. As was explained in the VCAA section above, the Veteran has been accorded ample opportunity to present competent medical evidence in support of his claim. He has failed to do so. See 38 U.S.C.A. § 5107(a) (West 2002) [it is the claimant's responsibility to support a claim for VA benefits]. To the extent that the Veteran or his representative is contending that the currently diagnosed bilateral hearing loss is related to his military service, neither is competent to comment on medical matters such as etiology. See Espiritu, supra; see also 38 C.F.R. § 3.159(a)(1) (2009) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. Accordingly, the statements offered by the Veteran in support of his own claim are not competent medical evidence and do not serve to establish medical nexus. To some extent, the Veteran appears to be in contending that he has had bilateral hearing loss continually since service. The Board is aware of the provisions of 38 C.F.R. § 3.303(b), discussed above, relating to chronicity and continuity of symptomatology. Although the Veteran is competent to testify as to his symptoms, supporting medical evidence of hearing loss is required to sustain a service connection claim based upon continuity of symptomatology. See Voerth v. West, 13 Vet. App. 117, 120-121 (1999) [there must be medical evidence on file demonstrating a relationship between the veteran's current disability and the claimed continuous symptomatology, unless such a relationship is one as to which a lay person's observation is competent]. Such evidence is lacking in this case. Crucially, as indicated above, the competent medical evidence of record does not demonstrate that the Veteran suffered from hearing loss until March 1992, over twenty-five years after his February 1966 discharge from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) [noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised]; see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) [affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of the claimed condition]. Continuity of symptomatology after service is therefore not demonstrated. Accordingly, Hickson element (3), medical nexus, has not been satisfied, and the Veteran's claim fails on this basis. In summary, for the reasons and bases expressed above, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for bilateral hearing loss. The benefit sought on appeal is accordingly denied. (CONTINUED ON NEXT PAGE) 3. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for back disability. 4. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for right shoulder disability. 5. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for traumatic brain disease. Because the three above-referenced claims involve the application of identical law to similar facts, for the sake of economy the Board will address them together. Relevant law and regulations The law and regulations pertaining generally to service connection has been set forth above and will not be repeated herein. The standard of review set out above does not apply to issues involving finality and new and material evidence. Finality/new and material evidence In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2009). Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. The definition of material evidence was revised in August 2001 to require that the newly submitted evidence relate to an unestablished fact necessary to substantiate the claim and present the reasonable possibility of substantiating the claim. See 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) [codified at 38 C.F.R. § 3.156 (2009)]. This change in the law pertains only to claims filed on or after August 29, 2001. Because the Veteran's claims to reopen were initiated in August 2003, the claims will be adjudicated by applying the revised section 3.156, discussed immediately below. New evidence is defined as evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a) (2009). An adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the appellant in the development of his claim has been fulfilled. See 38 U.S.C.A. § 5108 (West 2002); Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). For the purpose of establishing whether new and material evidence has been submitted, the truthfulness of evidence is presumed, unless the evidence is inherently incredible or consists of statements which are beyond the competence of the person making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Factual background When the Veteran's claims of entitlement to service connection for back disability, right shoulder disability, and traumatic brain disease were last denied by the RO in June 1996, the following pertinent evidence was of record. Service treatment records dated in March 1964 document an incident in which the Veteran was hit on the lower lip by a hatch cover, which resulted in a laceration to the lip and a loosening of the lower incisors. Crucially, no loss of consciousness or musculoskeletal problems were noted at that time. The Veteran's service separation examination dated December 1965 did not document any abnormalities of the back, shoulder, or head. VA treatment records dated 1991 through 1992, over a quarter of a century after he left military service in 1966, document the Veteran's complaints of headaches, short term memory loss, confusion, back pain, and right shoulder pain. Those treatment records repeatedly documented the Veteran's report that he originally injured his head and back when he was hit by machinery at the steel foundry where he worked. See, e.g., a VA treatment record dated June 1991. Social Security Administration decisional documents dated July 1992 show that the Veteran was determined to be disabled beginning January 25, 1991 due to severe headaches and degenerative joint disease of the right shoulder and lumbar spine. In a letter dated April 1993, the Veteran reported that while he was in the military, he "suffered injuries and illnesses which were not reported by me or my supervisors due to conditions under which we were working to meet combat preparedness and constantly on alert." The Veteran's claims of entitlement to service connection for back disability, right shoulder disability, and traumatic brain disease (head injury) were initially denied in a RO rating decision in May 1992. The Veteran did not appeal. In May 1996, the Veteran filed to reopen the previously denied back disability, right shoulder disability, and traumatic brain disease claims. He did not submit any new evidence. In a June 1996 letter, the RO declined to reopen the Veteran's claims. The Veteran did not appeal that decision and it became final. In August 2003, the Veteran again filed to reopen the previously denied claims. As indicated above, the December 2003 rating decision reopened and denied the Veteran's claims. This appeal followed. Evidence which has been added to the record since the June 1996 RO decision will be discussed in the Board's analysis, below. Analysis At the time of the prior denials, of record were diagnoses of degenerative joint disease of the back and right shoulder. There were also of record a number of medical reports documenting the Veteran's complaints of headaches, short term memory loss, dizziness, and confusion, although no specific diagnosis of traumatic brain disease or residuals of a head injury was shown. Hickson element (1) was met. Although the Veteran's March 1964 lip laceration due to the hatch cover injury was of record, there was no evidence of any in-service back, shoulder or brain injury. The RO denied Veteran's claims in essence because there was no evidence of the second Hickson element, in-service disease or injury. In the absence of element (2), element (3), medical nexus, was also lacking. The unappealed June 1996 RO decision is final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1103 (2009). As explained above, the Veteran's claims for service connection may only be reopened if he submits new and material evidence. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2009). Therefore, the Board's inquiry will be directed to the question of whether any additionally submitted evidence [i.e. after June 1996] bears directly and substantially upon the specific matters under consideration. After reviewing the record, and for the reasons expressed immediately below, the Board concludes that new and material evidence sufficient to reopen the claims of entitlement to service connection for back disability, right shoulder disability, and traumatic brain disease has not been submitted. The newly added evidence, in pertinent part, consists of VA treatment records dated 2000 through 2004, private treatment records from the Providence Medical Center dated in 1992, and statements from the Veteran. The newly added VA and private treatment records are cumulative and redundant of the evidence already of record in that these records document ongoing diagnoses of headaches as well as degenerative changes of the back and right shoulder. Such diagnoses were already of record at the time of the last final denial. Therefore, although these subsequently added private and VA treatment records are new, such evidence is not material. See Cornele v. Brown, 6 Vet. App. 59, 62 (1993); Mintz v. Brown, 6 Vet. App. 277, 280 (1994) [medical evidence that merely documents continued complaints, without addressing the crucial matter of medical nexus, does not constitute new and material evidence]. The newly added statements of the Veteran, including his November 2005 Board hearing testimony, contains reports of in-service injuries that were not of record at the time of the last final denial. Notably, the Veteran now asserts that he incurred traumatic brain disease due to repeated in- service physical assaults. See the November 2005 Board hearing transcript, pgs. 10-12. Additionally, he stated that he incurred the back and right shoulder injuries when he "flew off the back of a truck" and landed on a rock. See the November 2005 Board hearing transcript, pgs. 15-16. Pursuant to the Court's decision in Justus, for the purpose of establishing whether new and material evidence has been submitted, the truthfulness of evidence is presumed, unless the evidence is inherently incredible or consists of statements which are beyond the competence of the person making them. Although the Board finds it exceedingly curious that the Veteran would not raise these matters until this late date, his statements as to alleged physical abuse and the truck accident in service are not inherently false or incredible. The Board therefore finds these statements to be new and material with respect to Hickson element (2). Critically, there must be new and material evidence as to each and every aspect of the claim that was lacking at the time of the final denial in order for there to be new and material evidence to reopen the claim. See Evans v. Brown, 9 Vet. App. 273 (1996). New and material evidence remains absent as to element (3), medical nexus. There has been no additionally submitted evidence to establish a nexus between the Veteran's military service and his claimed disabilities. As such, the Veteran's claims to reopen fail on this basis. The Veteran has addressed the issue of medical nexus in his testimony before the Board as well as in multiple written statements. However, in Moray v. Brown, 5 Vet. App. 211, 214 (1993), the Court specifically stated that lay persons are not competent to offer medical opinions and that such evidence does not provide a basis on which to reopen a claim for service connection. In Routen v. Brown, 10 Vet. App. 183, 186, (1997), the Court again noted that "[l]ay assertions of medical causation cannot suffice to reopen a claim under 38 U.S.C. 5108." The Veteran has offered no other evidence of medical nexus aside from his own statements. In short, there remains no competent medical evidence that the Veteran's claimed disabilities are related to his military service. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000) [a veteran seeking disability benefits must establish a connection between the veteran's service and the claimed disability]. The additional evidence does not raise a reasonable possibility of substantiating the claims. Accordingly, new and material evidence has not been received pursuant to 38 C.F.R. § 3.156(a), and the claims of entitlement to service connection for back disability, right shoulder disability, and traumatic brain disease cannot be reopened. The benefits sought on appeal remain denied. ORDER Entitlement to service connection for tooth loss is denied. Entitlement to service connection for bilateral hearing loss is denied. New and material evidence has not been received to reopen the claim of entitlement to service connection for back disability. The benefit sought on appeal is denied. New and material evidence has not been received to reopen the claim of entitlement to service connection for right shoulder disability. The benefit sought on appeal is denied. New and material evidence has not been received to reopen the claim of entitlement to service connection for traumatic brain disease. The benefit sought on appeal is denied. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs