Citation Nr: 1237782	
Decision Date: 11/05/12    Archive Date: 11/09/12

DOCKET NO.  12-09 834	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1.  Entitlement to an effective date earlier than July 31, 2008, for the establishment of service connection for tinnitus.

2.  Entitlement to service connection for a skin disability.

3.  Entitlement to service connection for endocarditis, to include as secondary to skin disability.

4.  Entitlement to service connection for a dental disability for compensation purposes.

5.  Entitlement to an effective date earlier than July 31, 2008, for the assignment of a 20 percent rating for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs
ATTORNEY FOR THE BOARD

John Kitlas, Counsel


INTRODUCTION

The Veteran served on active duty from January 1944 to April 1946.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which established service connection for tinnitus, rated 10 percent, and assigned a 20 percent rating for bilateral hearing loss, both effective from July 31, 2008, the date of receipt of the claim.  The Veteran appealed, contending that earlier effective dates were warranted.  He did not disagree with the ratings assigned for these disabilities.  The June 2009 rating decision also denied service connection for a skin disability, endocarditis, and a dental disability.

A claim for service connection for a dental disability is also a claim for VA outpatient dental treatment.  Mays v. Brown, 5 Vet. App. 302 (1993).  However, the record shows the Veteran has already been referred for VA dental treatment.  Therefore, that aspect of his dental claim is resolved, and only the issue of service connection for compensation purposes is before the Board for adjudication.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The Board finds that further development is required with respect to the Veteran's skin disability and endocarditis claims and those claims are REMANDED to the RO via the Appeals Management Center, in Washington, D.C.



FINDINGS OF FACT

1.  The record does not shows that the Veteran submitted any written communication indicating that he was seeking or believed he was entitled to service connection for tinnitus prior to July 31, 2008.

2.  The Veteran's service-connected hearing loss has been the subject of multiple prior rating decisions, to include a June 1961 rating decision which reduced the assigned rating from 20 to 0 percent, effective August 21, 1961.  The Veteran was informed of that decision and did not appeal.

3.  For the period from the June 1961 rating decision and July 31, 2008, there was no written communication in which the Veteran indicated he was seeking or believed he was entitled to a compensable or higher rating for his service-connected hearing loss.  Moreover, there was no competent medical evidence prior to July 31, 2008, in which it was factually ascertainable that a compensable rating was warranted for hearing loss.

4.  Although the Veteran received dental treatment during his active service, the record does not show it was due to in-service dental trauma.


CONCLUSIONS OF LAW

1.  The criteria for an effective date earlier than July 31, 2008, for the establishment of service connection for tinnitus are not met.  38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.400 (2012).

2.  The criteria for an effective date earlier than July 31, 2008, for the assignment of a 20 percent rating for bilateral hearing loss are not met.  38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.400 (2012).

3.  Service connection is not warranted for a dental disability for compensation purposes.  38 U.S.C.A. §§ 1712, 5103, 5103A, 5107, 7104 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.381, 17.161 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Preliminary Matters

VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, and a duty to assist claimants by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

Initially, the Board notes that the Veteran's earlier effective date claims arise from a disagreement with the effective dates assigned by the June 2009 rating decision for the establishment of service connection for tinnitus and assignment of a 20 percent rating for hearing loss.  

A downstream issue, such as here, does not require separate notice of the information and evidence necessary to substantiate the newly raised issue because the claim for service connection is substantially complete and has been granted.  38 U.S.C.A. § 5103(a) (West 2002); VAOPGCPREC 8-2003 (2003), 69 Fed. Reg. 25180 (2004).  Rather, issuance of a statement of the case is required.  The required statement of the case addressing the issue of entitlement to an earlier effective date was furnished to the Veteran in March 2012.  Moreover, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  38 U.S.C.A. § 5103 (West 2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008).

The Board further notes that the Veteran received adequate notification regarding his earlier effective date and dental disability claims.  The Veteran was sent pre-adjudication notice via a letter dated in January 2009, which was prior to the June 2009 rating decision that is the subject of this appeal.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  That letter informed the Veteran of what was necessary to substantiate a service connection claim, what information and evidence he must submit, and what information and evidence will be obtained by VA.  Therefore, this correspondence fully complied with the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b).  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Moreover, that letter included information regarding disability ratings and effective dates.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The law requires that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims.  Once this has been accomplished, all due process concerns have been satisfied.  Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); 38 C.F.R. § 20.1102 (2012).  In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his current appellate claims and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence.  Accordingly, there is no further duty to notify.  In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice.  Shinseki v. Sanders, 129 S.Ct.1696 (2009) (burden of showing that an error is harmful or prejudicial falls upon the party attacking the agency determination).

In addition, the Board finds that the duty to assist a claimant in the development of the case has been satisfied regarding the earlier effective date and dental disability claims.  The Veteran's service medical records are on file, as are various post-service medical records.  Further, the Veteran has had the opportunity to present evidence and argument in support of these claims, and he has not identified the existence of any other relevant evidence that has not been obtained or requested.  For example, VA sent requests in January and March 2009 for records to all medical care providers identified by the Veteran.  Although no VA medical examination was accorded to the Veteran in regard to the earlier effective date or dental disability claims, the Board finds that no such development is warranted based on the facts of this case.  The adjudication of a claim for an earlier effective date is based upon evidence already in the claims folder; the resolution of the claim depends upon when certain documents were either received by VA or promulgated to the Veteran.  Therefore, there is no reasonable possibility that any further development, such as a medical examination, would aid in the resolution of the earlier effective date claims.  With respect to the dental disability claim, the resolution of the claim depends upon whether there was in-service dental trauma.  Consequently, the Board finds that the duty to assist the Veteran has been satisfied in this case.

The Board has thoroughly reviewed the record in conjunction with this case.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence).  Rather, the Board's analysis will focus specifically on what the evidence shows, or fails to show, on the claims.  Timberlake v. Gober, 14 Vet. App. 122 (2000) (Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, reasonable doubt shall be resolved in favor of the claimant.  38 U.S.C.A. § 5107(b) (West 2002).  When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant.  Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102 (2012).  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).  

Earlier Effective Date

Unless specifically provided otherwise, the effective date of an award based on an original claim for service connection shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.  38 U.S.C.A. § 5110(a) (West 2002).  The effective date of a rating and an award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 C.F.R. § 3.400 (2012). 

In general, the effective date for an increase will be the date of receipt of claim, or date entitlement arose, whichever is later.  38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400(o)(1) (2012).  For an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within one year from that date otherwise, the effective date shall be the date of receipt of the claim.  38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400(o)(2) (2012). 

The VA administrative claims process recognizes formal and informal claims.  A formal claim is one that has been filed in the form prescribed by VA.  38 C.F.R. § 3.151 (2012).  Any communication or action, indicating an intent to apply for one or more benefits, under the laws administered by VA, from a claimant may be considered an informal claim.  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim.  When a claim has been filed which meets the requirements of 38 C.F.R. § 3.151, an informal request for increase or reopening will be accepted as a claim.  38 C.F.R. 3.155 (2012).

Generally, the effective date of compensation benefits will be the date of receipt of the claim or the date when entitlement arose, whichever is the later.  However, receipt of clinical reports of examination or hospitalization may serve as informal claims for increase or to reopen where the claim is for an already service-connected disability.  The date of receipt of that clinical evidence may serve to form the basis for an earlier effective date for the subsequent award of VA benefits if the benefits derive from a claim for increased rating or an application to reopen a claim for compensation denied because the service-connected disability was not of compensable degree.  38 C.F.R. § 3.157 (2012).

Application is not defined in the statute.  However, in the regulations, claim and application are considered equivalent and are defined broadly to include a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.  38 C.F.R. § 3.1(p) (2012); Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999).

For purposes of establishing the requirements and procedures for seeking veterans' benefits, a claim, whether formal or informal must be in writing to be considered a claim or application for benefits.  Claims, informal or formal, are defined as a communication in writing.  38 C.F.R. § 3.1(p) (2012).  When 38 C.F.R. § 3.155(a) refers to an informal claim, it necessarily incorporates the definition of that term in 38 C.F.R. § 3.1(p) as a communication in writing.  The provisions of 38 C.F.R. § 3.155(a) make clear that there is no set form that an informal written claim must take.  All that is required is that the communication indicate an intent to apply for one or more benefits under the laws administered by VA, and identify the benefit sought.  Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999).

The provisions of 38 C.F.R. § 3.400(o)(2) permit payment of increased disability compensation retroactively to the date the evidence establishes the increase in the degree of disability had occurred; if the claim for increase is received within a year of that date.  That regulation was intended to be applied in those instances where the date of increased disablement can be factually ascertained with a degree of certainty.  That regulation was not intended to cover situations where disability worsened gradually and imperceptibly over an extended period of time.  VAOPGCPREC 12-98 (1998), 63 Fed. Reg. 56704 (1998).

In order for entitlement to an increase in disability compensation to arise, the disability must have increased in severity to a degree warranting an increase in compensation.  Hazan v. Gober, 10 Vet. App. 511 (1992). 

A review of all the evidence of record, not just evidence not previously considered, is required as to the disability in order to ascertain the earliest possible effective date.  Hazan v. Gober, 10 Vet. App. 511 (1992).  However, if the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was factually ascertainable.  If the increase occurred more than one year prior to the claim, the increase is effective the date of claim.  If the increase occurred after the date of claim, the effective date is the date of increase.  38 U.S.C.A. § 5110(b)(2) (West 2002); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(1)(2) (2012); VAOPGCPREC 12-98 (1998), 63 Fed. Reg. 56704 (1998). 

Thus, determining whether an effective date assigned for an increased rating is correct or proper under the law requires a determination of the date of the receipt of the claim and a review of all the evidence of record to determine when an increase in disability was ascertainable.  Hazan v. Gober, 10 Vet. App. 511 (1992)

Tinnitus

The Veteran contends that he is entitled to an effective date from April 1946 for the establishment of service connection for tinnitus.  He maintains that he was treated for ringing in his ears while on active duty, and that he also complained of ringing in his ears in conjunction with his original hearing loss claim.  Therefore, he contends that his original hearing loss claim encompassed those symptoms and he is entitled to an effective date from the time of his separation from service.

A review of the Veteran's service treatment records shows that he was noted as having partial loss of hearing of both ears on his April 1946 discharge examination.  It was also stated that he had discharge from the right ear and obscured drum bilateral condition type deafness.  Moreover, at a September 1946 VA medical examination he reported that in the middle of 1944 his ears "started ringing" after a high explosive went off in camp.  Then, "the ringing got better for a while though I noticed I could not hear as well as formerly."

Despite the foregoing, the Board observes that prior to July 31, 2008, no written communication was submitted by the Veteran in which he indicated he was seeking or believed he was entitled to service connection for ringing in his ears or for tinnitus.  On the Application for Pension or Compensation that he submitted in May 1946 he explicitly stated that he was seeking service connection for "defective hearing."  In other words, a reasonable view of the claim indicates he was only seeking service connection for the hearing loss itself.  The Board observes that is consistent with the actual wording of the Veteran's account of his medical history on the September 1946 VA examination.  Although he reported having ringing in 1944, he indicated that it was better.  Therefore, he indicated it had resolved.  That is supported by the fact that he only described current symptomatology of hearing loss in conjunction with this claim, and not ringing in his ears.  Further, the examiner diagnosed bilateral chronic suppurative otitis media and bilateral partial deafness (hearing ordinary conversation at 17 feet with each ear).  He was not diagnosed with tinnitus on that examination.

The Board also observes that the nature of the Veteran's hearing loss has been the subject of multiple prior rating decisions to include May 1946, October 1946, April 1948, and June 1961.  At no point during the adjudication of the claims addressed by these decisions did he indicate his hearing loss disability included ringing in the ears or tinnitus.

The Board acknowledges that in conjunction with his current claim, the Veteran submitted what appears to be a VA audio report dated in May 1979 which notes constant tinnitus.  However, nothing in the report itself indicates the Veteran indicated he was wanted or believed he was entitled to service connection for tinnitus.  Moreover, the provisions of 38 C.F.R. § 3.157 which denote the circumstances under which medical records can serve as an informal claim specifically state it only applies in circumstances where a disability is already service-connected, which is not the case regarding the Veteran's tinnitus.

The Board notes that a claimant can also obtain an earlier effective date by showing clear and unmistakable error (CUE) in a prior decision.  However, the Veteran has not contended there was any CUE in any prior rating decision.  Therefore, there is no basis for the Board to consider CUE at this time.

In view of the foregoing, the Board finds that a thorough review of the record does not show that the Veteran filed a claim of service connection for tinnitus prior to July 31, 2008.  Therefore, preponderance of the evidence is against the claim for an effective date prior to July 31, 2008, for the establishment of service connection for tinnitus.  Accordingly, the claim for an earlier effective date must be denied.  38 U.S.C.A. §§ 5107(b), 5110 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.400 (2012).

Hearing Loss

The Veteran's hearing loss has been the subject of multiple prior rating decisions in May 1946, October 1946, April 1948, and June 1961.  In May 1946, service connection was established for impaired hearing, rated 0 percent, effective April 29, 1946.  The subsequent October 1946 rating decision indicates that the 0 percent rating was continued for deafness, partial, 17/20 bilateral; while service connection was also established for otitis media, suppurative, bilateral, rated 10 percent, effective April 29, 1946.  The April 1948 rating decision recognized both of those conditions as one service-connected disability, identified as otitis externa with bilateral loss of hearing.  That rating decision assigned a 20 percent rating, effective from March 30, 1948.  The June 1961 rating decision found that a compensable rating for either defective hearing or otitis externa or otitis media was not warranted.  Therefore, the assigned rating of 20 percent for otitis media with defective hearing was reduced from 20 percent to 0 percent, effective August 21, 1961.  The record shows that the Veteran was sent notification regarding those rating decision, including the June 1961 rating decision which reduced the assigned rating to 0 percent, and that he did not appeal.  Consequently, those decisions are final.  38 U.S.C.A. §§ 5108, 7104, 7105 (West 2002); 38 C.F.R. §§ 20.1100, 20.1103 (2012).

The Board acknowledges that the Veteran has contended, to include in his July 2008 claim, that he was never notified his hearing loss benefit was going to cease.  However, the record indicates a notification letter was sent in June 1961 to the Veteran's address of record informing him of this action.  Hyson v. Brown, 5 Vet. App. 262 (1993); Wamhoff v. Brown, 8 Vet. App. 517 (1996).  Moreover, there is a presumption of regularity which holds that government officials are presumed to have properly discharged their official duties.  Unless rebutted by clear evidence to the contrary, VA is entitled to the benefit of this presumption.  Ashley v. Derwinski, 2 Vet. App. 307 (1992).  Applying this presumption to the instant case, the record indicates that the Veteran was informed that the assigned rating for his service-connected hearing loss was reduced from 20 percent to 0 percent.  Moreover, it seems unlikely it took the Veteran more than 40 years to notice that he was no longer receiving VA compensation benefits, and yet it does not appear he contacted VA regarding the matter until July 2008.

The Board also acknowledges that the Veteran has contended that the assigned rating for his hearing loss should not have been reduced.  However, as mentioned in the analysis of his tinnitus claim, he has not explicitly contended that there was CUE in any prior rating decision, which included the June 1961 rating decision that reduced the assigned rating to 0 percent.  To assert a valid claim of CUE, the claimant must assert more than a disagreement as to how the facts were weighed or evaluated.  He must, with some degree of specificity, identify the alleged error and provide persuasive reasons why the result would have been different but for the alleged error.  Moreover, the mere assertion of CUE is not sufficient to reasonably raise the issue.  Russell v. Principi, 3 Vet. App. 310 (1992); Fugo v. Brown, 6 Vet. App. 40 (1993).  

The Board further finds that, for the period from the June 1961 rating decision until July 31, 2008, there was no written communication in which the Veteran indicated he was seeking or believed he was entitled to a compensable rating for hearing loss.  In fact, no written communication of any kind from the Veteran appears in the documents assembled for the Board's review during that period.  Therefore, it does not appear he submitted any unadjudicated increased rating claim for his service-connected hearing loss prior to July 31, 2008.

The Board has already acknowledged that in conjunction with his current claim, the Veteran has submitted what appears to be a VA audiology report dated in May 1979.  Although it does not appear that evidence was in the record prior to the current effective date of July 31, 2008, the Board is cognizant that VA medical records which are in existence are constructively of record and the failure of the RO or the Board to consider any such pertinent records might constitute CUE, even though such evidence was not actually in the record assembled for appellate review.  Bell v. Derwinski, 2 Vet. App. 611 (1992).  Moreover, as hearings was a service-connected disability at that time, the provisions of 38 C.F.R. § 3.157 are for consideration.  However, nothing in the May 1979 audiogram itself shows that the Veteran indicated he was going to seek or believed he was entitled to a compensable or increased rating for his hearing loss at that time.  In short, it does not appear he initiated an increased rating claim for his service-connected hearing loss at that time.  

Accordingly, the Board finds that the Veteran did not have an unadjudicated claim of entitlement to an increased rating for hearing loss prior to July 31, 2008.  Therefore, the Board finds that the date of claim for increase, following the previous assignment of a rating in a final decision, was July 31, 2008.

The Board must now address whether it was factually ascertainable prior to July 31, 2008, that a 20 percent rating was warranted for hearing loss.  Hazan v. Gober, 10 Vet. App. 511 (1992)

The only audiological evaluation dated prior to July 31, 2008, that was not considered by one of the prior rating decisions in this case appears to be that of the May 1979 VA audio report.  That report was not actually of record until after July 31, 2008, although it was constructively of record when written.  However, even if the Board were to go by the date of that report, the record does not shows that it is adequate for rating under the relevant rating criteria.  38 C.F.R. §§ 4.85-4.87, Diagnostic Codes 6100 to 6110 (2012); 38 C.F.R. § 4.85-4.87 (1979).  It is not clear from May 1979 report that the evaluation was conducted in accord with the requirements for such testing contained at 38 C.F.R. § 4.85, to include that it be conducted by a state-licensed audiologist and speech discrimination results were pursuant to the Maryland CNC test.  Further,  the criteria for evaluating hearing provide ratings from 0 percent to 100 percent, based on the results of controlled speech discrimination tests together with the results of pure tone audiometry tests which average pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz.  However, the May 1979 report contains no findings for the right ear regarding 3,000 Hertz.  As such, the Board must find that the May 1979 audio report is not adequate for evaluation of the Veteran's hearing loss under the current schedular criteria.  In addition, under the criteria in effect in 1979, the May 1979 report does not result in a compensable rating for hearing loss.  38 C.F.R. § 4.85-4.87 (1979).  Even had that report shown a factually ascertainable increase, that increase would been shown more than one year prior to the receipt of a claim for increase.

As there is no other audiological evidence of record which may be considered for the relevant period, the Board finds that it is not factually ascertainable that the Veteran satisfied the criteria for a 20 percent evaluation for his service-connected hearing loss prior to July 31, 2008.

Therefore, the Board finds that an earlier effective date is not warranted for the assignment of a 20 percent rating for the Veteran's service-connected hearing loss.  The preponderance of the evidence is against the claim and the claim is denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Dental Disability

Service connection may be granted for disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012).  Service connection may be granted for dental disease or for injury of individual teeth or periodontal tissues, if such disease or injury is shown to have been incurred in or aggravated by active service.  38 C.F.R. § 3.381(b) (2012).  However, service connection for treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and for periodontal disease will be considered solely for the purpose of establishing eligibility for outpatient dental treatment.  38 C.F.R. § 3.381(a) (2012).  Therefore, service connection for compensation purposes is not available for a dental disability other than for injuries sustained as a result of combat wounds or other dental trauma.  Moreover, compensation is only available for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla.  Compensation is available for loss of teeth only if that loss is due to the loss of substance of body of maxilla or mandible.  38 U.S.C.A. § 1712 (West 2002); 38 C.F.R. §§ 17.54, 17.161 (2012).

The Veteran maintains that he received dental treatment, to include fillings, while on active duty, and has described the circumstances thereof.  Consequently, he contends he is entitled to service connection for a dental disability.

The Board does not dispute that the Veteran received dental treatment during his active service.  However, the term service trauma does not include the intended effects of treatment provided during a veteran's military service.  The term trauma is ordinarily defined as a physical injury caused by a blow, or fall or as a wound; an injury inflicted more or less suddenly, by some physical agent.  In other words, an injury.  Treatment is given in order to remedy the effects of disease or injury.  Dental treatment is not synonymous with dental trauma, and that it would be anomalous to conclude that the remedy for an injury or disease constituted further injury.  VAOPGCPREC 5-97 (1997), 62 Fed. Reg. 15,566 (1997).  The precedent opinions of the VA General Counsel's Office are binding upon the Board.  38 U.S.C.A. § 7104 (West 2002 & Supp. 2012). 

In this case, neither the Veteran's service medical records nor his own contentions show that any in-service dental treatment was the result of a dental injury/trauma.  Therefore, the Board must conclude that the Veteran is not entitled to service connection based upon in-service treatment as it does not constitute service trauma. 

In view of the foregoing, the Board must conclude that the record does not support a finding of an in-service dental injury or trauma while on active duty.  As the veteran's appeal is based solely upon in-service dental trauma, the Board must conclude that he is not entitled to service connection for a dental condition for compensation purposes.  Therefore, the preponderance of the evidence is against the claim and the benefit sought on appeal must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to an effective date earlier than July 31, 2008, for the establishment of service connection for tinnitus is denied.

Entitlement to an effective date earlier than July 31, 2008, for the assignment of a 20 percent rating for bilateral hearing loss is denied.

Entitlement to service connection for a dental disability for the purposes of compensation is denied. 


REMAND

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012).  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a disability manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b) (2012).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d) (2012).

Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service.  Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415 (1998); Cuevas v. Principi, 3 Vet. App. 542 (1992).  Where the determinative issue involves medical causation or a medical diagnosis, there must be competent evidence to the effect that the claim is plausible.  Lay evidence can be competent and sufficient to establish a diagnosis of a disability when (1) a layperson is competent to identify the medical disability, (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.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

A disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected.  38 C.F.R. § 3.310 (2012).  When aggravation of a nonservice-connected disability is proximately due to or the result of a service-connected disease or injury, it shall be service-connected.  Allen v. Brown, 7 Vet. App. 439 (1995).

The Veteran contends that he has a current skin disability due to excessive sun exposure while on active duty in the Philippines.  Further, he contends that his endocarditis is secondary to his skin disability.  His service records indicate that he had active service in the Philippines, and sun exposure appears to be something that a lay person is competent to observe.  His service medical records also note that he was found to have pustules on his face in December 1944.  Moreover, in an April 2009 statement, a private physician stated that she had treated the Veteran for sun related skin problems since 1988; that an infectious disease specialist attributed the Veteran's endocarditis to an infection from his skin; and that the Veteran's skin problems were caused by prolonged exposure to the sun while serving active duty.

Despite the foregoing, the Board observes that it does not appear that private physician reviewed the Veteran's service medical records or any other evidence of record.  That is of particular significance because the Veteran's skin was clinically evaluated as normal on both his April 1946 discharge examination and a September 1946 VA medical examination.  Moreover, there is no indication of any chronic skin disability until years after service.  Mense v. Derwinski, 1 Vet. App. 354 (1991) (normal medical findings at the time of separation from service, and the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim.).  The Board also notes that physician did not include any rationale in support of the opinion that the Veteran's endocarditis is secondary to his skin disability, nor is that demonstrated by the other evidence of record.  Stefl v. Nicholson, 21 Vet. App. 120 (2007) (examination that provides an etiology opinion without a rationale is inadequate.).  Consequently, the Board concludes that the private opinion is not adequate for resolution of this case.

In view of the foregoing, the Board finds that this case must be remanded for VA examinations to adequately address the current nature and etiology of the Veteran's claimed skin disability and endocarditis.  38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006); Colvin v. Derwinski, 1 Vet. App. 171 (1991).  

Because the Board has determined that a new examination is necessary, the Veteran is hereby informed that provides that individuals for whom examinations have been authorized and scheduled are required to report for the examinations.  38 C.F.R. § 3.326(a) (2012).  When entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without good cause, fails to report for an examination, when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record.  However, when the examination is scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied.  38 C.F.R. § 3.655 (2012).

The Board further finds that any outstanding medical records regarding the Veteran's skin disability and endocarditis should be obtained while this case is on remand.

Accordingly, the case is REMANDED for the following action:

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011).  Expedited handling is requested.

1.  Obtain the names and addresses of all medical care providers who have treated the Veteran for a skin disability or endocarditis since April 2009.  After securing any necessary releases, obtain those records not on file.

2.  After obtaining any additional records to the extent possible, schedule the Veteran for an examination to evaluate the nature and etiology of his claimed skin disability.  The examiner must review the claims file and must note that review in the report.  The examiner must express an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that any current skin disability was incurred in, aggravated by, or is otherwise the result of active service.  The opinion should consider of the Veteran's account of in-service sun exposure, the December 1944 in-service findings of pustules, the findings of normal skin on the April 1946 discharge examination and September 1946 VA medical examination, and the April 2009 private medical opinion.  A complete rationale for any opinion expressed must be provided.

3.  Schedule the Veteran for an examination to address the nature and etiology of any endocarditis.  The examiner must review the claims file and must note that review in the report.  The examiner must express an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that the Veteran's current endocarditis was incurred in, aggravated by, or is otherwise the result of active service.  If not, the examiner should express an opinion as to whether it is at least as likely as not that the endocarditis was caused or aggravated by the Veteran's current skin disability.  Aggravation is a permanent increase in severity that is beyond the natural progression of the disorder.  A complete rationale for any opinion expressed must be provided.

4.  Then readjudicate the claim.  If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response.  Then, return the claim to the Board.  

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

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).



______________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs