Citation Nr: 1302002 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 09-07 001 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a dental disability. 2. Entitlement to service connection for blurred vision claimed as a result of traumatic brain injury (TBI). ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 2005 to November 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA). Jurisdiction of the appeal was subsequently transferred to the RO in St. Petersburg, Florida. The Board, among other things, remanded the issues remaining on appeal for additional development in April 2010. The Veteran did not perfect his appeal of issues remanded and addressed in a May 2012 statement of the case. The development requested in the April 2010 remand has been substantially completed. It is significant to note that the Veteran did not respond to a September 2011 request for clarification as to whether he was requesting service connection for VA dental treatment purposes. Therefore, the appeal is considered to be limited to service connection for compensation purposes. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. A dental disorder for VA compensation purposes is not shown by the evidence of record. 3. A blurred vision disability for VA compensation purposes was not manifest during active service and is not shown to have developed as a result of an established event, injury, or disease during active service or to have been caused or aggravated as a result of a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for compensation purposes for a dental disorder have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.381, 4.150 (2012). 2. A blurred vision disability for VA compensation purposes was not incurred in or aggravated by military service or a service-connected disability. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (Court) have been fulfilled by information provided to the Veteran in letters dated in March 2008 and September 2011. Those letters notified the Veteran of VA's responsibilities in obtaining information to assist in completing his claims and identified the Veteran's duties in obtaining information and evidence to substantiate his claims. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006). The notice requirements pertinent to the issues remaining on appeal have been met and all identified and authorized records relevant to these matters have been requested or obtained. The available record includes service treatment records, VA treatment and examination reports, and the Veteran's statements in support of his claims. The Board finds that further attempts to obtain additional evidence would be futile. The Court has held that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that VA medical opinions obtained in this case are adequate as they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). The available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to move forward with the claims would not cause any prejudice to the appellant. Dental Disability Claim VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4, provides compensable disability ratings for the loss of teeth due to the loss of substance of the body of the maxilla or mandible. See 38 C.F.R. § 4.150, Diagnostic Code 9913 (2012). It is noted that these ratings apply only to bone loss through trauma or disease such as osteomyelitis and not to the loss of the alveolar process as a result of periodontal disease. VA law provides that 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, and rating action should consider each defective or missing tooth and each disease of the teeth and periodontal tissues separately to determine whether the condition was incurred or aggravated in line of duty during active service and, when applicable, to determine whether the condition is due to combat or other in-service trauma, or whether the veteran was interned as a prisoner of war. 38 U.S.C.A. § 1712 (West 2002); 38 C.F.R. § 3.381 (before and after February 29, 2012). In this case, service treatment records dated in July 2005 noted the Veteran fell and hit his face on a concrete floor during a training exercise. It was noted he sustained a chipped tooth. Records also noted an abrasion to the left mandible. Dental records dated in July 2005 noted restoration to a broken tooth (number nine). In his November 2007 application for VA benefits the Veteran requested entitlement to service connection for teeth that were knocked out during boot camp. He stated that veneers were put on the top row and that the bottom teeth were chipped and replaced. At his January 2008 VA dental examination the Veteran reported that during training in July 2005 he tripped and chipped his front teeth. He stated that temporary restoration were placed on the teeth at that time and while at home on convalescent leave his private dentist had replaced the temporary restorations with porcelain crowns. The examiner noted there was no evidence of functional loss and the only missing teeth were third molars. His range of motion was within normal limits and pain free. There was no bone loss to the mandible, maxilla, or hard palate. There was fully intact dentition with multiple large fillings in the posterior teeth. There were porcelain crowns to teeth numbers 7, 8, 9, 10, 23, 24, 25, and 26. The examiner noted that service treatment records were not available, but that if it were determined that his anterior teeth were restored as a result of an in-service injury service connection should be established for these teeth. VA treatment records dated in May 2008 noted missing teeth numbers 1, 16, 17, and 32. Teeth numbers 2, 3, 4, 12, 13, 14, 15, 18, 19, 20, 29, 30, and 31 had been restored and porcelain crowns were on teeth numbers 7, 8, 9, 10, 23, 24, 25, and 26. The examiner noted the Veteran's oral hygiene was poor and there was active gingivitis to the soft tissue. VA dental examination in February 2012 noted the Veteran's claim file was reviewed and provided a history of his having chipped a front tooth and lacerated his upper lip while in boot camp. The examiner noted that trauma to the face/jaw did not result in any damage except to tooth number nine. It was noted that tooth number 9 was fractured in service, but was restored to normal form and function. The lip laceration was minor without complications. There was no jaw fracture. The examiner stated it was less likely that the claimed condition was incurred in or caused by the in-service injury. Based upon the evidence of record, the Board finds that a dental disorder for VA compensation purposes is not shown by the evidence of record. Although the evidence demonstrates damage to tooth number 9 due to trauma, the evidence also demonstrates that tooth has been restored. The February 2012 VA medical opinion is persuasive that a dental disability for VA compensation purposes was neither incurred in nor aggravated by active service. There is no evidence of any teeth lost due to bone loss through trauma. The Board acknowledges that, generally, claimants are competent to give evidence about what they experience; for example, to discuss current pain and other experienced symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Laypersons are not, however, competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because they do not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). The Veteran, however, is not competent to provide an opinion as to whether the loss of his teeth has been due to the loss of substance of the body of the maxilla or mandible. Therefore, the Board finds entitlement to service connection is not warranted. When all the evidence is assembled VA is then 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 the claim in which case the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the Veteran's claim. Blurred Vision Claim Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). VA regulations provide that congenital or developmental defects, such as refractive error of the eye, are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c); but see VAOPGCPREC 82-90, 55 Fed. Reg. 45711 (1990) (service connection may not be granted for defects of congenital, developmental or familial origin if the defect was subject to a superimposed disease or injury). In the case of a veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2012). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or aggravated by service-connected disease or injury. 38 C.F.R. § 3.310(a) (effective before and after October 10, 2006). The Court has held that when aggravation of a nonservice-connected condition is proximately due to or the result of a service-connected condition a veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). Effective October 10, 2006, VA regulations were amended to include that any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. It was noted, however, that VA will not concede a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b) (effective after October 10, 2006); see 71 Fed. Reg. 52,744 (Sept. 7, 2006). VA has also proposed amending a regulation concerning secondary service connection to act upon a report of the National Academy of Sciences, Institute of Medicine, Gulf War and Health, Volume 7: Long-Term Consequences of Traumatic Brain Injury, regarding the association between traumatic brain injury (TBI) and five diagnosable illnesses. The intended effect of the amendments is to establish that if a veteran who has service-connected TBI also has one of the five diagnosable illnesses, then that illness will be considered service connected as secondary to the TBI. The proposed illnesses include (i) Parkinsonism following moderate or severe TBI; (ii) Unprovoked seizures following moderate or severe TBI; (iii) Dementias (presenile dementia of the Alzheimer type and post-traumatic dementia) if manifest within 15 years following moderate or severe TBI; (iv) Depression if manifest within 3 years of moderate or severe TBI, or within 12 months of mild TBI; and (v) Diseases of hormone deficiency that result from hypothalamo-pituitary changes if manifest within 12 months of moderate or severe TBI. See 77 Fed. Reg. 73,366 (Dec. 10, 2012). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a Veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The Court has also held that medical evidence is required to demonstrate a relationship between a present disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. See Clyburn v. West, 12 Vet. App. 296 (1999). Lay evidence is competent to establish observable symptomatology; however, VA may make credibility determinations as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr, 21 Vet. App. 303. In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit held that whether lay evidence is competent and sufficient in a particular case is an issue of fact and that lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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. In Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006), the Federal Circuit held that the lay evidence presented by a veteran concerning his continuity of symptoms after service may generally be considered credible and ultimately competent, regardless of a lack of contemporaneous medical evidence. The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2012). In this case, service treatment records dated in July 2005 noted the Veteran fell and hit his face on a concrete floor during a training exercise. It was noted he sustained a chipped tooth and that he complained of a little haziness to the left eye. The examiner found a lid abrasion to the left eye with no ocular trauma detected. Records also reflect that the Veteran sustained combat injuries in July 2006 from an improvised explosive device (IED) while serving in Iraq, including post-concussion syndrome. A November 2006 report noted he complained of blurry vision. A diagnosis of subjective refractory error was provided. At his VA examination in January 2008 the Veteran complained of blurred vision since an explosion in Iraq. It was noted he had no past ocular history of significance and that he did not wear glasses. The examiner noted that examination revealed uncorrected visual acuity, bilaterally, of 20/20 at distance and 20/20 at near. The final diagnosis was normal eye examination. Service connection for migraine headaches with post-concussion syndrome were established in a March 2008 rating decision. A 10 percent rating was assigned. VA examination in June 2012 revealed bilateral myopia correctable to 20/20. The examiner noted that the claims file was reviewed and, in essence, that an opinion had been requested as to whether a present eye disorder was related to the Veteran's head injury in service. The examiner stated no blurred vision was noted. In an August 2012 addendum the examiner stated the Veteran's myopia was not caused by or related to TBI. As rationale, it was noted that myopia was a refractive condition and that it was not caused by head injury during service. The opinion was noted to have been based upon clinical knowledge and a medical records review. Based upon the evidence of record, the Board finds that a blurred vision disability for VA compensation purposes was not manifest during active service and is not shown to have developed as a result of an established event, injury, or disease during active service or to have been caused or aggravated as a result of a service-connected disability. The January 2008, June 2012, and August 2012 VA medical opinions are persuasive in this case. Although the Veteran is a combat veteran for VA compensation purposes, he is not competent to provide medical opinions as to whether his myopia developed as a result of TBI in service. The August 2012 VA medical opinion is clear that his myopia was not caused or aggravated by TBI, and there is no diagnosis of another eye disorder that is manifested by myopia. In addition, as was noted previously, congenital or developmental defects, such as refractive error of the eye, are not diseases or injuries within the meaning of applicable legislation. Therefore, based on all of the foregoing, entitlement to service connection for an eye disorder must be denied. The preponderance of the evidence is against his claim. ORDER Entitlement to service connection for a dental disability is denied. Entitlement to service connection for blurred vision, claimed as a result of TBI, is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs