Citation Nr: 1133792	
Decision Date: 09/12/11    Archive Date: 09/22/11

DOCKET NO.  10-15 757	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUES

1.  Entitlement to service connection for a respiratory disorder, to include tuberculosis or asbestosis.  

2.  Entitlement to service connection for heart disease.

3.  Entitlement to service connection for a dental disorder. 


REPRESENTATION

Veteran represented by:	Virginia A. Girard-Brady


ATTORNEY FOR THE BOARD

J.M. Rutkin, Associate Counsel



INTRODUCTION

The Veteran served on active duty from July 6, 1972, to November 3, 1972.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which denied service connection for the disabilities at issue in this appeal. 

In the Veteran's March 2009 VA Form 9, Appeal to Board of Veteran's Appeals, the Veteran indicated that he wished to submit claims for difficulty swallowing, arthritis in both hands, a tumor, Bell's palsy, and redness and pain of the eyes.  These claims have not yet been addressed by the agency of original jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them and they are REFERRED to the AOJ for appropriate action.  

The claim of entitlement to service connection for a respiratory disorder is addressed in the REMAND portion of the decision below and is REMANDED to o the Department of Veterans Affairs Regional Office.


FINDINGS OF FACT

1.  The Veteran's heart disease did not manifest in active military service or within one year of separation, and has not otherwise been shown to be related to service. 

2.  A dental disorder was not incurred by combat or trauma during active military service, and no pathology of the teeth or extraction of the teeth developed or occurred after 180 days or more of active service. 




CONCLUSIONS OF LAW

1.  Heart disease was not incurred in or aggravated by active service, nor may it be presumed to have been incurred in service.  38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2010).

2.  The criteria for entitlement to service connection for a dental disorder for compensation or for purposes of eligibility for VA outpatient dental treatment, have not been met.  38 U.S.C.A. §§ 1110, 1712, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.381, 4.150, 17.161 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the Veteran's claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision.  See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  While the Board must review the entire record, it need not discuss each piece of evidence.  See id.  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).  The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran.  Id.  

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  Id.

I. Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA provides that VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010).  The Board finds that all duty to notify and assist requirements have been met with respect to the Veteran's claims for heart disease and a dental disorder. 

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  The United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  This notice should generally be provided prior to an initial decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date.  See 38 U.S.C. § 5103(a) (West 2002).  Compliance with the first Quartuccio element requires notice of these five elements.  See id. at 486. 

Here, prior to the initial rating decision in this matter, a December 2008 letter informed the Veteran of all five elements of service connection, gave examples of the types of evidence the Veteran could submit in support of his claim, and provided notice of the Veteran's and VA's respective responsibilities for obtaining such evidence.  Therefore, the Board concludes that the duty to notify has been satisfied.  See id.

The VCAA further provides that VA has a duty to assist the veteran in the development of the claim.  See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. 
§ 3.159(c) (2010).  This duty includes assisting him in obtaining service treatment records and other pertinent treatment records, as well as providing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim.  See id.

The Board concludes that the duty to assist has been satisfied.  The Veteran's service treatment records and VA medical records are in the file, as well as a June 2006 decision of the Social Security Administration (SSA).  Private medical records identified by the Veteran have also been obtained to the extent possible.  

Although it does not appear that the RO requested the medical records associated with the June 2006 SSA decision, the decision itself makes clear that the records of treatment for the Veteran's heart disease in SSA's possession do not date earlier than February 2004.  Moreover, these records are discussed in detail in the decision and there is no indication that obtaining them would provide further information as to the etiology of the Veteran's heart disorder.  In Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010), the Federal Circuit held that to conclude that all medical records or all SSA disability records are relevant would render the word 'relevant' superfluous in 38 C.F.R. § 5103A.  The Federal Circuit further held that the Government is not required to "obtain records in every case in order to rule out their relevance."  Id. at 1323.  Rather, VA is required to examine the information related to the medical records and to obtain those records only "if there exists a reasonable possibility that the records could help the veteran substantiate his claim for benefits."  Id.  Here, as will be discussed below, there is no evidence showing that a heart disorder manifested in service or for many years thereafter.  Private treatment records dated since February 2004 showing treatment and diagnoses of cardiovascular problems are already in the claims file.  As the records referred to in the SSA decision simply reflect additional information regarding the Veteran's recent heart problems and do not date earlier than February 2004, there is no reasonable possibility that they would substantiate the Veteran's claim for heart disease by supporting a link to service.  Accordingly, the Board finds that there is no need to obtain them in order to rule out their relevance.  See Golz, 590 F.3d at 1321.  By the same token, the Board notes that the SSA decision makes no mention of a dental disorder and thus there is no indication that medical records pertaining to a dental disorder were associated with that decision.  Thus, these records would not be relevant to the Veteran's claim for a dental disorder and there is no need to obtain them.  See id.

The Veteran has not identified any other outstanding records that he wanted VA to obtain or that he felt were relevant to the present claims.  The Board concludes that the duty to assist has been satisfied with respect to obtaining relevant evidence on the Veteran's behalf.  See 38 C.F.R. § 3.159(c) (2010).  

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law.  See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. §§ 3.159(c)(4), 3.326(a) (2010).  In McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006), the Court held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case.  

Here, medical examinations or opinions have not been provided or obtained with respect to the present claims.  With regard to the Veteran's heart disease, the Veteran's service treatment records are negative for diagnoses, treatment, or complaints pertaining to the heart or cardiovascular system.  The Veteran has not stated that a heart condition manifested during active service.  Thus, there is no evidence of an in-service disease, injury, or event related to the heart.  See id.  Moreover, the earliest evidence of the Veteran's current heart disorder is dated in 2004, which is over thirty years since the Veteran separated from active service.  Given this long period of time between separation from service and the onset of heart problems, and absent any competent evidence otherwise suggesting a nexus to service, there is no indication that the Veteran's current heart disorder may be related an in-service disease, injury, or event.  See id.  Therefore, a VA examination is not required in order to decide this claim.  See id.

With respect to the Veteran's dental disorder, the Veteran does not argue and there is no evidence showing that he sustained trauma to the teeth during active service, as will be discussed in more detail below.  Moreover, the Veteran did not serve for 180 days or more.  See 38 C.F.R. §§ 3.381, 17.161 (2010).  As pathology or extraction of teeth must have developed or occurred after 180 days or more of active service, and the Veteran must have served for at least 180 days in order to be eligible for one-time treatment of noncompensable service-connected dental condition or disability, the Veteran is precluded by law from establishing service connection for a dental disorder for the purposes of treatment.  See id.  Finally, there is no evidence showing that the Veteran has any of the dental or oral conditions subject to compensation set forth in 38 C.F.R. § 4.150.  Thus, a VA examination is not required in order to decide this claim.  See McLendon, 20 Vet. App. at 83; see also 38 U.S.C.A. § 5103A(a)(2) (West 2002) (the Secretary is not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001).   

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103, 115 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

II. Service Connection

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110.  For the showing of 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.  38 C.F.R. § 3.303(b).  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  Id.  Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

In addition, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection for certain chronic disabilities, including cardiovascular-renal disease, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307; 3.309(a).  This presumption is rebuttable by affirmative evidence to the contrary.  38 C.F.R. § 3.307(d). 

In order to establish service connection for the claimed disorder on a direct basis, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service.  See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).  

A. Heart Disease

The Veteran claims entitlement to service connection for heart disease.  For the following reasons, the Board finds that service connection is not warranted.

The evidence does not show that a heart disorder manifested in service or until around 2004.  Specifically, the Veteran's service treatment records are negative for diagnoses, treatment, or complaints of a heart or cardiovascular disorder.  In February 2004, the Veteran was hospitalized at VA for shortness of breath, nausea, a rapid heart rate, and chest pain.  It was noted that he had a seven-year history of hypertension and a history of a cerebrovascular accident in 2000.  However, he denied any cardiac history.  A chest x-ray, stress test, and EKG were normal.  A rule-out diagnosis of acute coronary syndrome or cardiac ischemia was initially rendered, but the Veteran's chest pain was ultimately determined to be unrelated to heart problems.  

A few days later, the Veteran was seen at Arkansas Heart Hospital in February 2004 with similar symptoms of chest pain and shortness of breath.  He was diagnosed with multiple pulmonary emboli.  According to the June 2006 SSA decision, this facility also noted a history of ischemic heart disease, cardiac enlargement, congestive heart failure, and a cerebrovascular accident with continued left-sided weakness and facial droop characterized as late effects of cerebrovascular disease.  As noted above, the actual treatment record reflecting this history is not in the file but the Board deems SSA's reference to this record to be an adequate substitute.  

Private records dated in June 2005 reflect diagnoses of inferior ischemia and peripheral vascular disease.  

In carefully reviewing the record, the Board finds that the preponderance of the evidence weighs against a relationship between the Veteran's heart disorder and his period of service.  The Veteran has not stated and the service treatment records do not show that a heart or cardiovascular disorder manifested in service.  The earliest evidence of heart disease is dated in February 2004 when the Veteran began complaining of chest pain.  Thus, the evidence of record does not show a disease, injury, or event occurred in service related to the Veteran's heart.  See Shedden, 381 F.3d at 1166-67.  

Moreover, the long period of over thirty years between the Veteran's period of service and the earliest evidence of the Veteran's heart disease weighs against a relationship to service.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a proper consideration for the trier of fact is the amount of time that has elapsed since military service, and that evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the Veteran's health and medical treatment during and after military service, as evidence of whether a condition was incurred in service).  There is no evidence of a continuity of symptoms after separation or competent evidence otherwise suggesting a relationship between the Veteran's heart disease and his period of service.  See 38 C.F.R. § 3.303.  Thus, service connection is not warranted on a direct basis.  See id.; see also Shedden, 381 F.3d at 1166-67.

Because the evidence does not show that the Veteran's heart disease manifested within one year of separation, service connection is also not warranted on a presumptive basis.  See 38 C.F.R. §§ 3.307, 3.309.  

In making all determinations, the Board must fully consider the lay assertions of record.  In this regard, a layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (noting that a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, No. 09-3525 (U.S. Vet. App. June 15, 2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. 

Competency of evidence differs, however, from the weight and credibility assigned to evidence.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination that addresses the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify").  In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498 (1995).
The Board notes the Veteran's contention that a medical relationship exists between his current disability and service, and the Board acknowledges that the Veteran is competent to testify as to his observations and lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology.  See supra Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  In this case, an assertion as to the etiology of the Veteran's heart disability is a question unlike testimony as to a separated shoulder, varicose veins, or flat feet, which are capable of direct observation.  See Jandreau, 492 F.3d at 1376 (noting that lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308-09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (discussing that unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. at 405 (finding that a lay person is competent to testify to pain and visible flatness of his feet).  There is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding the etiology of his current heart disability.  See 38 C.F.R. § 3.159 (a)(1) (2010) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions).  While the Veteran is competent to report what he observed and he experienced during service, he does not assert nor does the record reflect a heart disability in service.  Furthermore, he is not competent to ascertain the etiology of his heart disability, as the causative factors for such are not readily subject to lay observation.  See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994).  In this circumstance, the Board gives more credence to the absence of evidence in the record than the Veteran's unsubstantiated assertions.   

Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim.  Consequently, the benefit-of-the-doubt rule does not apply, and service connection for heart disease must be denied.  See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. 

B. Dental Disorder

The Veteran claims service connection for a dental disorder.  It is not clear from the record whether the Veteran has claimed service connection for compensation or only for outpatient treatment services.  Thus, the Board will consider service connection on both bases.  See Mays v. Brown, 5 Vet. App. 302, 306 (1993).  For the reasons that follow, the Board finds that service connection is not warranted. 

As noted above, service connection may be granted for a disability due to a disease or injury which was incurred in or aggravated by active duty.  See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Dental disorders, however, are treated differently than other medical disorders in the VA benefits system.  See 38 U.S.C.A. § 1712; 38 C.F.R. §§ 3.381, 17.161.  As provided by VA regulations, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses and periodontal disease are not considered disabling conditions, and may be considered service connected solely for establishing eligibility for VA outpatient dental treatment.  See 38 C.F.R. § 3.381(a).

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.  38 C.F.R. § 3.381(c).

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.  38 C.F.R. § 3.381(d).

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.  38 C.F.R. § 3.381(e).  Teeth extracted because of chronic periodontal disease will be service connected only if they were extracted after 180 days or more of active service.  38 C.F.R. § 3.381(f).

At the outset, the Board notes that the Veteran has not specified the nature of his dental disorder or which teeth have been affected.  The Veteran has not stated and there is no evidence showing that the Veteran has any problems of the maxilla, mandible, or temporomandibular articulation, loss of whole or part of the ramus, loss of the condyloid process or coronoid process, loss of the hard palate, or loss of teeth due to loss of substance of the body of the maxilla or mandible due to trauma or disease such as osteomyelitis rather than as a result of periodontal disease.  See 38 C.F.R. § 4.150.  Therefore, in the absence of a claim for any of these disabilities, or evidence that the Veteran has such disabilities, service connection for compensation purposes for a dental disability or condition is not warranted.  See id.  

The Board will next consider entitlement to service connection for the purposes of outpatient treatment only.  In this regard, at an October 2005 hearing which was held before the Board in connection with a previous claim, the Veteran stated that he had problems with his teeth, including loss of teeth, as a result of his wisdom teeth being pulled out during active service.  The service treatment records show that at least one wisdom tooth, number 17, was extracted during active service in July 1972.  However, this occurred only a few days after the Veteran entered active service in July 1972 and thus not after 180 days or more of active service.  Service connection for extraction of third molars cannot be established 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.  See 38 C.F.R. § 3.381(e)(3).  As noted above, "service trauma" does not include the intended effects of therapy or restorative dental care and treatment provided during a Veteran's military service.  38 C.F.R. § 3.306(b)(1); VAOGCPREC 5-97.  Thus, service connection is not warranted due to extraction of one or more of the Veteran's wisdom teeth during active service.  See id.

Moreover, the Veteran, as a layperson, cannot provide a competent opinion as to whether he developed any later dental conditions or disabilities as a result of the extraction of his wisdom teeth.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469- 71 (1994).  Such a determination is medically complex and thus must be made by a person with appropriate medical expertise in order to be considered competent evidence.  See id.  Thus, the Veteran's bare statement that he developed later dental conditions as a result of dental treatment during service is not competent evidence and therefore cannot support his claim.  See id.

The Board also notes that the Veteran does not meet the basic eligibility requirements for dental treatment set forth in 38 C.F.R. § 17.161, which are organized in term of classes of eligibility.  Under § 17.161(a), for veterans with a service-connected compensable dental disability or condition, any dental treatment reasonably necessary to maintain oral health and masticatory function may be authorized.  This is known as Class I eligibility.  See id.  As discussed above, service connection has not been established for a compensable dental disability or condition.  Thus, the Veteran is not eligible for Class I dental treatment under § 17.161(a).

For veterans who were discharged prior to October 1, 1981, as is the case here, any treatment indicated as reasonably necessary for the one-time correction of the service-connected noncompensable dental condition or disability may be authorized if the veteran served for at least 180 days and applied for treatment within one year of discharge, among other requirements.  See 38 C.F.R. § 17.161(b)(iii)(2)(i)(A) and (B).  This is known as Class II eligibility.  See id.  Here, the Veteran served from July 6, 1972 to November 3, 1972 and therefore did not have 180 days of active service.  Therefore, he is ineligible for Class II outpatient dental treatment under § 17.161(b).  

For veterans who have a service-connected noncompensable dental condition or disability determined to be result of combat wounds or service trauma, or who were prisoners of war for a period of less than 90 days, any treatment indicated as reasonably necessary for the correction of the condition or disability may be authorized irrespective of the amount of time served or when application for treatment was made.  38 C.F.R. § 17.161(c) and (d).  This is known as Class II(a) and Class II(b) eligibility, respectively.  See id.  A veteran who served as a prisoner of war for 90 days or more may be authorized for any needed dental treatment.  See 38 C.F.R. § 17.161(e).  This is characterized as class II(c) eligibility.  See id.  Trauma, as defined for purposes of dental treatment eligibility, is defined as "an injury or wound produced by an external physical force during the service member's performance of military duties" and does not include the intended results of proper medical treatment.  See Nielson v. Shinseki, 607 F.3d 802, 808 (Fed. Cir. 2010); see also 38 C.F.R. § 3.306(b)(1); VAOGCPREC 5-97 (1997). 

Here, the Veteran has not argued and there is no evidence showing that the Veteran had combat service, was a prisoner of war, or sustained a dental condition or disability as a result of trauma in service.  As discussed above, although one or more of the Veteran's wisdom teeth were extracted during service, this does not constitute trauma as defined by VA as there is no evidence of malpractice.  See id.  Therefore, the Veteran is not entitled to Class II outpatient treatment under § 17.161(c), (d) or (e).    

A veteran who has a dental condition that has been professionally determined to be an aggravating disability from an associated service-connected condition or disability may be authorized dental treatment for only those dental conditions which are having a direct and material detrimental effect upon the associated basic condition or disability.  See 38 C.F.R. § 17.161(g).  This is considered Class III eligibility.  Here, the Veteran does not have any disabilities for which service connection has been established.  Therefore, he is not eligible for treatment on a Class III basis.  By the same token, the Veteran is not eligible for treatment on a Class IV basis, which is only available to veterans entitled to a 100 percent rating due their service-connected disabilities.  See 38 C.F.R. § 17.161(h). 

Finally, there is no indication that the Veteran is presently participating in a vocational rehabilitation program, and there has been no professional determination that he needed any dental services in conjunction with the program.  Nor is there any indication that the Veteran has a dental condition that is complicating another condition that is currently under VA treatment.  Therefore, the Veteran is not eligible for dental treatment under Classes V and VI.  See 38 C.F.R. § 17.161(i), (j).

In sum, the Veteran does not qualify under any of the classes of eligibility for entitlement to VA outpatient treatment under 38 C.F.R. § 17.161.  

Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a dental disorder for the purposes of compensation or treatment.  Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied.  See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55.  


ORDER

Entitlement to service connection for heart disease is denied. 

Entitlement to service connection for a dental disorder is denied. 


REMAND

The Veteran also claims entitlement to service connection for a respiratory disorder.  The Board finds that this claim must be remanded for further development.  

The scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record.  See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009).  The Board finds that the Veteran's claim for a respiratory disorder encompasses both tuberculosis and asbestosis.  In this regard, a February 2007 private treatment record reflects that the Veteran's respiratory disorder has been diagnosed as granulomatous lung disease associated with post-service occupational asbestos exposure.  At that time, the Veteran reported a history of exposure to asbestos dust from 1973 to 1975 from civilian employment as a welder, roofer, and sandblaster.  A chest x-ray showed bilateral interstitial fibrosis consistent with asbestosis with left hilar granulomatous changes.  The Veteran denied a history of turberculosis exposure.  The treating provider thus concluded that given the Veteran's abnormal chest x-ray and industrial history, the Veteran had asbestosis-related lung disease.  

However, despite the Veteran's denial of tuberculosis exposure in the February 2007 private treatment record, the Board notes that a July 1972 service treatment record reflects a positive tuberculosis skin test a few days after the Veteran entered active service.  At this time, the Veteran reported a pre-service history of tuberculosis exposure, which occurred on July 4, 1972, two days before he entered active service.  An August 1972 chest x-ray revealed granulomas of the lungs and a possible calcified lymph node of the lower right hilum.  The abnormal x-ray findings were associated with the Veteran's tuberculosis exposure in an August 1972 consultation report.  It was recommended that a chest X-ray be performed again after several weeks to monitor any changes.  However, the service treatment records are negative for any additional X-rays or for any complaints or further findings regarding the Veteran's lungs or respiratory system.  

Given the Veteran's positive tuberculosis skin test and history of tuberculosis exposure, in conjunction with the abnormal chest X-ray findings associated with such exposure, the Board finds that service connection for tuberculosis must be considered.  See id.  

Because the Veteran's granulomas of the lung were not noted at entry but rather about a month after the Veteran entered active duty, he is presumed to have been in sound condition at entry.  See 38 C.F.R. § 3.304(b) (2010).  In this regard, the Board notes that a May 1972 pre-induction examination showed a normal chest X-ray.  The Veteran's reported tuberculosis exposure occurred after this examination was performed and prior to his entry on active service in July 1972.  VA regulation specifically provides that X-ray evidence of pulmonary tuberculosis may be adequate for the grant of direct service connection.  38 C.F.R. § 3.370 (2010).  However, when the disease is inactive, service connection will not be warranted if lesions are first shown so soon after entering active service as to compel the conclusion, on the basis of sound medical principles, that they existed prior to entry.  See 38 C.F.R. § 3.370(b) (2010).  

On remand, the Veteran should be examined by a pulmonologist or similar specialist to determine whether the Veteran currently has tuberculosis or residuals thereof and whether it is active or inactive.  The examiner should consider whether the Veteran's granulomas of the lung shown in the February 2007 private X-ray report are related to the granulomas of the lung shown in the August 1972 in-service X-ray study.  The examiner should also render an opinion as to whether the Veteran's granulomas of the lungs and possible calcified lymph node of the right hilum shown in the August 1972 chest X-ray represented active or inactive tuberculosis.  Further, the examiner should determine whether these pathologies of the lungs were detected so soon after the Veteran's entry into active service as to compel the conclusion, based on sound medical principles, that they existed prior to entry.  See id.  Finally, the examiner should render an opinion as to whether it is clear and unmistakable that the Veteran's granulomas of the lungs and possible calcified lymph node of the right hilum were not aggravated by active service.  See 38 U.S.C.A. § 1111 (West 2002); Wagner v. Principi, 370 F 3d 1089, 1096 (Fed. Cir. 2004). 

Accordingly, the case is REMANDED for the following actions:

1.  The Veteran should be scheduled for an examination with a pulmonologist or similar specialist to determine the nature and etiology of his respiratory disorder.  The entire claims file and a copy of this REMAND must be made available to the examiner prior to the examination.  The examiner must note in the examination report that the evidence in the claims file has been reviewed.  The examiner must also obtain a current chest X-ray and conduct any other tests or studies deemed appropriate.

After reviewing the file and examining the Veteran, the examiner should render opinions as to the following:
a. Whether the Veteran currently has tuberculosis or a residual thereof, and whether it is active or inactive. 
b. Whether the granulomas of the lung shown in the February 2007 private chest X-ray are related to the granulomas of the lung shown in the August 1972 X-ray study. 
c. Whether the Veteran's granulomas of the lungs and possible calcified lymph node of the right hilum shown in the August 1972 chest X-ray represented active or inactive tuberculosis.
d. Whether the granulomas of the lungs and possible calcified lymph node of the right hilum shown in the August 1972 X-ray were detected so soon after the Veteran's entry on active service in July 1972 as to compel the conclusion, based on sound medical principles, that they existed prior to entry.  See id.  
e. Finally, the examiner should render an opinion as to whether it is clear and unmistakable that the Veteran's respiratory disorder, to include tuberculosis or granulomas of the lungs and possible calcified lymph node of the right hilum, was not aggravated by active service.  
It would be helpful if the examiner, in expressing his or her opinion, would use the language "likely," "unlikely" or "at least as likely as not."  The term "at least as likely as not" does not mean "within the realm of medical possibility."  Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation.
The examiner must provide a complete rationale for all opinions stated.  If the examiner is not able to provide an opinion without resorting to speculation, the examiner must state the reasons why such an opinion cannot be rendered.  The agency of original jurisdiction (AOJ) should ensure that an adequate rationale has been provided before returning this case to the Board. 

2.  After the above development is completed, and any other development that may be warranted based on any additional information or evidence received, the AOJ should readjudicate the claim on the merits.  If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

No action is required of the Veteran until further notice.  However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims.  His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated.  The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim.  38 C.F.R. § 3.655 (2010).  

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).



____________________________________________
LANA K. JENG
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs