Citation Nr: 1007105 Decision Date: 02/25/10 Archive Date: 03/05/10 DOCKET NO. 06-19 678 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for lumbar and cervical spine disorders. 2. Entitlement to an initial compensable rating for bilateral hearing loss. 3. Entitlement to service connection for dental trauma. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, his spouse, and daughter ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Counsel INTRODUCTION The Veteran had active service from March 1967 to March 1970. He also had service with the National Guard over the period of December 1983 to December 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In February 2008, a hearing was held before the undersigned Veterans Law Judge making this decision. See 38 U.S.C.A. § 7107(c) (West 2002). This case was previously remanded in March 2008 for further evidentiary development. Although the Board noted in its previous remand that the Veteran's claim was also considered a claim for VA outpatient dental treatment, the record does not reflect that such a claim has ever been adjudicated by the RO. Consequently, the Board does not currently have jurisdiction of a claim for service connection for dental trauma for VA dental treatment purposes. FINDINGS OF FACT 1. Degenerative disc disease (DDD) of the lumbar and cervical spine has been related to active service. 2. Bilateral hearing loss is manifested by pure tone threshold averages and speech recognition scores that correspond to not worse than level "III" hearing in the right ear and level "III" in the left ear. 3. Service connection for residuals of the loss of front lower teeth for compensation purposes is precluded as a matter of law. CONCLUSIONS OF LAW 1. DDD of the lumbar and cervical spine was incurred in service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2009). 2. The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 3.321, 4.85, 4.86, Diagnostic Code 6100 (2009). 3. Residuals of the loss of front lower teeth are not subject to service connection for VA compensation purposes. 38 U.S.C.A. §§ 1110 1712 (West 2002); 38 C.F.R. §§ 3.303, 3.381 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As a result of the Board's decision to grant service connection for DDD of the lumbar and cervical spine, any failure on the part of VA to notify and/or develop this claim pursuant to the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009) (VCAA), cannot be considered prejudicial to the Veteran. In addition, since the claim for service connection for dental trauma for compensation purposes is now subject to denial on the basis of undisputed facts, the VCAA also does not have to be addressed with respect to this claim. Where the law is dispositive and where there is no reasonable possibility that any assistance would aid in substantiating a claim on appeal, the VCAA is not for application. Wensch v. Principi, 15 Vet. App. 362 (2001); Smith v. Gober, 14 Vet. App. 227, 231-232 (2000) (holding that the VCAA was inapplicable to a matter of pure statutory interpretation). The Board will therefore confine its discussion of the VCAA primarily as it relates to the Veteran's claim for an initial compensable rating for bilateral hearing loss. The Veteran's claim arises from the Veteran's disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlop v. Nicholson, 21 Vet. App. 112 (2007). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent post-service treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Service treatment records are associated with the claims folder, as are post-service VA medical examination reports and treatment records. The Board also finds that the August 2009 VA examiner's comments with respect to the Veteran's difficulty understanding conversational speech in most situations, turning the television too loud for others, and frequent inability to hear sounds in his environment sufficiently address the effects the Veteran's hearing loss has on occupational functioning and daily activities pursuant to Martinak v. Nicholson, 21 Vet. App. 447 (2007). Finally, with respect to the September 2009 VA dental examiner's expressed inability to provide an etiological opinion without resorting to speculation, a remand for an additional opinion is not warranted since the examiner did provide findings that otherwise render the claim subject to denial as a matter of law. Thus, the Board finds that there has been substantial compliance with its previous remand under Stegall v. West, 11 Vet. App. 268 (1998), and that further remand of this matter is not required. In light of the foregoing, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced by the Board's adjudication of his claim. II. Service Connection for DDD of the Lumbar and Cervical Spine Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.306. The United States Court of Appeals for Veterans Claims (Court) has held that in order to prevail on the issue of service connection on the merits, there must be medical evidence of a (1) 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 present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). When a Veteran served 90 days or more during a period of war and an organic disease of the nervous system becomes manifest to a degree of 10 percent within a period of one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of the disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2009). The Veteran's service treatment records reflect that in June 1968, the Veteran reported injury to the lower lip. Examination revealed a laceration, and the Veteran was treated and told to return for reevaluation in the morning. In August 1968, it was noted that the Veteran had been struck by a 3/4 ton truck the previous evening, and had sustained abrasions, contusions, and lacerations on the left knee and right elbow. The impression was lacerations and contusions. Several days later, the Veteran's lacerations and contusions on the left knee were noted to be healing satisfactorily. In April 1969, the Veteran complained of a stiff neck when he awakened the previous day. He was given a heating pad and muscle relaxants but they had reportedly had no effect. Physical examination revealed limitation of motion upon rotation to the right. The impression was "stiff neck." Although a history of head injury was noted at the time of separation examination in February 1970, this was more particularly described as a reference to a skull fracture the Veteran sustained at age 10. With the exception of pectus excavatum, examination of the spine revealed normal findings. A VA hospital summary from September 1978 reflects that the Veteran had been treated for injuries sustained from a motorcycle accident in which he was hit head on by an oncoming automobile. Nothing was mentioned at this time about a prior accident or in-service injuries to the neck or lower back. However, in a claim for medical benefits filed in September 1979, the Veteran described an in-service incident in 1968 wherein a hatch on an armored personnel carrier closed on his head, and he sustained a cut around the mouth, loosened bottom teeth, and a broken tooth. An August 2003 private magnetic resonance imaging (MRI) of the lumbar spine revealed mild degenerative disc disease at L5-S1 as indicated by minimal desiccation of the disc, and findings consistent with annular tear at the posterior margin of the annular fibrosis, L5-S1. Private treatment records from January 2004 reflect that the Veteran's back complaints had reportedly become worse since lifting a heavy equipment battery several days earlier. He noted pain radiating into his left leg that awakened him at night. The Veteran also reported a long history of neck problems, and that he now had a recurrence of left-sided arm pain and paresthesias. Examination of the neck revealed decreased range of rotation to the left of about 165 degrees, and to the right, 170 degrees. He was also noted to have tenderness at the mid lumbar spine. The assessment was both cervical and lumbar pain and radiculopathy. Ten days later, it was noted that the back and neck were both about 50 percent better. The assessment was cervical disc and lumbar disc disease with radiculopathy. A March 2004 private MRI of the cervical spine revealed diffuse low grade disc bulging or ridging at C5-6 narrowing anterior subarachnoid space without cord compression, and an extradural lesion on the right at C7-T1 disc space extending to the right lateral disc. The foramina were only minimally narrowed. In his original claim on appeal, the Veteran asserted that he injured his neck while in Vietnam in 1968. He also asserted that he injured his back in Vietnam. An Army National Guard examination in December 2004 revealed a diagnosis of both musculoskeletal and cardiovascular disease. The source of the musculoskeletal disease was indicated as the residuals of the 1978 motorcycle accident, an old military jaw surgery/dentures and neck injury with worsening posterior neck pain into the head (headaches) and across shoulder, degenerative back disease with recurring low back pain, stiffness into the left hip and leg, and sunken chest. A March 2005 private medical records reflects that the Veteran had reportedly been released from the military due to his neck problems. The assessment included degenerative joint disease (DJD) of the neck. Private treatment records from September 2006 reflect that the Veteran identified two separate back injuries in the previous 1 1/2 weeks. The first was while driving a tractor when he felt a pull, and the second, while lifting a bale of hay. The assessment included lumbar strain and previous history of fractured pelvis and DJD of the spine. In October 2006, the assessment included recent back pain, and in January 2007, there was a diagnosis of DJD cervical spine with occasional muscle spasm. At the Veteran's February 2007 hearing before a hearing officer at the RO, the Veteran indicated that he injured himself during service in 1968, when a latch on the hatch in his military vehicle broke off, sending the hatch down on the back of his head and forcing his face into a periscope (transcript (T.) at p. 2). He believed this happened in 1968 (T. at p. 3). He injured his back in another incident when he was struck by a 3/4 ton truck, also sometime in 1968 (T. at p. 3). This was the incident that was documented in the service treatment records (T. at p. 3). The Veteran also injured his back during his National Guard service between 1982 and 2005 (T. at pp. 7-8). Private treatment records from May 2007 reflect an assessment that included DJD cervical spine. At the Veteran's hearing before the Board in February 2008, the Veteran again testified with respect to his in-service injuries to the neck and back, and subsequent injuries to the back during his service with the National Guard. VA lumbar spine x-rays from April 2009 were interpreted to reveal facet sclerosis at L5-S1. X-rays of the cervical spine revealed degenerative narrowing of the atlantoaxial joint, and mild DDD with narrowing of the C5-6 disc space. VA examination in September 2009 again revealed the Veteran's report of two injuries during service. It also reflects that the examiner reviewed the Veteran's claims file. The diagnosis was DDD of the lumbar and cervical spine. It was the opinion of the examiner that the Veteran's DDD of the lumbar and cervical spine was most likely caused by or a result of military service. The examiner explained that the Veteran suffered two different injuries in service leading to the DDD of the lumbar and cervical spine, and that the pain and symptoms in the neck and low back had persisted and worsened since that time until the present. She further stated that it was most likely that the trauma from these injuries led to the early development of DDD in both the neck and low back. In an addendum statement, dated in October 2009, the September 2009 VA examiner reiterated that it was her opinion that the Veteran had two different injuries in service that most likely caused microtrauma to the lumbar and cervical spine. This then, over time, led to the development of DDD in the lumbar and cervical spine. She further commented that the fact that he did not have back pain at the time of separation did not mean that he did not go on to develop pain later that was related to trauma suffered in the military. In reviewing the evidence of record, as noted above, there are multiple current diagnoses of both DDD and DJD of the cervical and lumbar spine. Thus, while the Board does not find x-ray evidence of DJD that would permit it to conclude that there is a current diagnosis of this disability, the diagnosis of DDD of the lumbar and cervical spine is found to have been rendered by multiple physicians, the most recent of which followed comprehensive examination by VA in September 2009. The Board will therefore initially conclude that the threshold requirement of current disability has clearly been met with respect to the diagnosis of DDD of the lumbar and cervical spine. The Board further notes that while it is unclear whether the Veteran is claiming that he suffered from continuing neck and back complaints ever since service, from a credibility standpoint, it is probably best that he has not emphasized such a claim, especially with the lack of a report of a prior back or neck injury at the time of his motorcycle accident in 1978, during his initial report of dental trauma in 1979, or at any time thereafter until January 2004. However, despite the above-noted deficiencies with respect to any claim based on continuity of symptoms, service connection may also be established based on competent medical evidence linking current disability to active service. In this regard, the only competent medical evidence addressing this question is in favor of the claim. More specifically, after her review of the claims file and thorough examination of the Veteran, the September 2009 examiner concluded that the Veteran's DDD of the lumbar and cervical spine was most likely caused by or a result of military service, explaining that the Veteran suffered two different injuries in service leading to the DDD of the lumbar and cervical spine, that the pain and symptoms in the neck and low back had persisted and worsened since that time until now, and that it was most likely that the trauma from these injuries led to the early development of DDD in both the neck and low back. In fact, the examiner offered an additional explanation following her reiteration of her opinion in October 2009, when she indicated that the injuries in service most likely caused microtrauma to the lumbar and cervical spine which then, over time, led to the development of DDD in the lumbar and cervical spine. She further defended her position by stating that the fact that he did not have back pain at the time of separation did not mean that he did not go on to develop pain later that was related to trauma suffered in the military. Consequently, based on the existence of current disability, a competent medical opinion linking that current disability to service based on sufficient rationales and uncontradicted by another medical opinion, the existence of some treatment during service which is consistent with the Veteran's assertion of being struck during service by a military vehicle and in-service neck complaints consistent with the Veteran having been struck by a hatch from above, the Board finds that the evidence supports the grant of service connection for DDD of the lumbar and cervical spine. III. Entitlement to an Initial Compensable Rating for Bilateral Hearing Loss Entitlement to service connection for bilateral hearing loss was granted in the August 2005 rating decision and assigned a noncompensable rating, effective from April 2005. Where, as here, entitlement to compensation has been established, but a higher initial disability rating is at issue, the extent of impairment throughout the entire period, beginning with the filing of the veteran's original claim, must be considered and a determination must be made regarding whether "staged" ratings are warranted. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999) (when a disability rating is initially assigned, separate ratings should be considered for separate periods of time, known as staged ratings). The medical evidence for the entire period must be considered. On the authorized audiological evaluation in July 2005, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 40 80 95 LEFT 20 25 50 100 100 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 80 in the left ear. Pure tone threshold averages were 60 decibels on the right and 68.8 for the left, and the Veteran complained about the difficult of hearing conversations with background noise. The diagnosis was bilateral sensorineural hearing loss. The examiner commented that hearing loss was mild to moderate bilaterally in the mid frequencies, and then became profound in the high frequencies. At the Veteran's hearing before the Board in February 2007, the Veteran testified that his bilateral hearing loss was no worse than it was at the time of his previous examination in July 2005 (T. at p. 15). At the Veteran's hearing before the Board in February 2008, the Veteran indicated that he had not had a VA examination since the filing of his claim. On the authorized audiological evaluation in October 2009, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 45 90 105 LEFT 20 25 55 100 105+ Speech audiometry revealed speech recognition ability of 86 percent in the right ear and of 88 in the left ear. Pure tone threshold averages were 66 decibels on the right and 71+ for the left, and the Veteran complained of difficulty understanding conversational speech in most situations, turning the television too loud for others, and frequent inability to hear sounds in his environment. The diagnosis was bilateral symmetrical high-frequency sensorineural hearing loss. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2009). Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2009). The determination of whether an increased evaluation is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In its evaluation, the Board shall consider all information and lay and medical evidence that is of record. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (West 2002). The basis for evaluating defective hearing is the impairment of auditory acuity as measured by pure tone threshold averages, within the range of 1000 to 4000 Hertz and speech discrimination using the Maryland CNC word recognition test. 38 C.F.R. § 4.85. Pure tone threshold averages are derived by dividing the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz by four. Id. The pure tone threshold averages and the Maryland CNC test scores are given numeric designations which are then used to determine the current level of disability based upon a pre-designated schedule. Tables VI and VII in 38 C.F.R. § 4.85 (2009). Under these criteria, the assignment of a disability rating is a "mechanical" process of comparing the audiometric evaluation to the numeric designations in the rating schedule. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1993). Effective on June 10, 1999, new provisions were added to the schedular criteria allowing special consideration to cases of exceptional patterns of hearing impairment. See 38 C.F.R. § 4.86 (2009). One of the provisions provides that an individual who manifests pure tone thresholds of 55 decibels or more in each of the specified frequencies (1000, 2000, 3000 and 4000 Hertz) will be given a numeric designation from either Table VI or VIa, whichever results in the higher numerical. 38 C.F.R. § 4.86(a) (2009). The other provision provides that, when the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the higher Roman numeral designation under Table VI or Table VIa will be established, and the numeral will be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86(b) (2009). During the pendency of this claim, the highest hearing thresholds were demonstrated at the August 2009 VA audiology examination, which reflects right and left ear pure tone threshold averages of 66 and 71+ decibels, respectively, with speech recognition of 86 percent on the right and 88 percent on the left. This corresponds to a numeric designation of "III" in the right ear and "III" in the left. Table VI in 38 C.F.R. § 4.85 (2009). These combined numeric designations then result in a noncompensable rating under Table VII. 38 C.F.R. § 4.85, Table VII (2009). There is no certification in this case of language difficulties or inconsistent speech audiometry scores so as to allow consideration of the numeric designations contained in Table VIa (see 38 C.F.R. § 4.85(c) (2009)). The results of the two previous audiology examinations shows pure tone thresholds of less than 55 at 1000 and 2000 Hertz, with the exception of 55 decibels at 2000 Hertz in the left ear in September 2009. Therefore, the provisions of 38 C.F.R. § 4.86(a) are not applicable to either ear. Furthermore, the provisions of 38 C.F.R. § 4.86(b) are not applicable as neither ear has ever exhibited pure tone thresholds of 30 decibels or less at 1000 Hertz and of 70 or more decibels at 2000 Hertz. In summary, the Board finds that the evidence of record preponderates against a compensable rating for the Veteran's hearing loss at any point since the filing of the Veteran's original claim in April 2005. In so holding, the Board has considered the Veteran's descriptions of his hearing loss disability, but finds that the most probative evidence concerning the level of severity of this disorder consists of the audiometric testing results of record. See Lendenmann, 3 Vet. App. at 349. Moreover, while the evidence of record indicates that the Veteran uses hearing aids, the schedular rating makes proper allowance for his improvement in hearing. See 38 C.F.R. § 4.85(a) (2009). There is no doubt to be resolved in his favor. 38 U.S.C.A. § 5107(b) (West 2002). Finally, the Board would point out that the rating schedule represents as far as practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b) (2009). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). The Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The Veteran's symptoms associated with his service-connected hearing loss cause bilateral hearing loss that reportedly makes it difficult to understand conversational speech in most situations, causes the Veteran to turn the television too loud for others, and frequently results in the inability to hear sounds in his environment. Such impairment is contemplated by the applicable rating criteria. The rating criteria reasonably describe the Veteran's disability. Referral for consideration of extraschedular ratings is, therefore, not warranted. IV. Entitlement to Service Connection for Dental Trauma for Compensation Purposes With respect to the Veteran's claim for service connection for dental disability associated with dental trauma causing the loss of lower front teeth and other damage, although service connection may generally be established for a disability resulting from disease or injury incurred in or aggravated by active service (38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2009)), an exception to the general rule is applicable to dental disabilities. According to the statute and regulation, 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 (2009). 38 U.S.C.A. § 1712 (West 2002); 38 C.F.R. § 3.381(a) (2009). In addition, even if the Board were to concede that the Veteran sustained all of the dental injury as alleged, service connection may not be established for compensation purposes for missing or damaged teeth. The Board finds, therefore, that entitlement to VA compensation benefits for residuals of lost front teeth is also precluded as a matter of law. The Board further notes that service connection for loss of teeth can be established for compensation purposes if the loss is due to the loss of the body of the maxilla or mandible due to trauma or disease, such as osteomyelitis. 38 C.F.R. § 4.150, Diagnostic Code 9913 (2009). The medical evidence does not show that the Veteran experienced any damage to the maxilla or mandible during service. In fact, VA examination in September 2009 specifically found no such damage. Therefore, entitlement to compensation benefits for the loss of the body of the maxilla or mandible is not shown. In summary, there is no basis to grant service connection for dental disability in this matter for VA compensation purposes as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to service connection for DDD of the lumbar and cervical spine is granted. Entitlement to a compensable rating for bilateral hearing loss is denied. Entitlement to service connection for dental trauma for compensation purposes is denied. ______________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs