Citation Nr: 1303452 Decision Date: 02/01/13 Archive Date: 02/08/13 DOCKET NO. 09-17 939 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for perforated tympanic membrane. 3. Entitlement to service connection for a dental disorder. 4. Entitlement to service connection for bilateral hearing loss. 5. Entitlement to service connection for sleep apnea. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. P. Simpson, Counsel INTRODUCTION The Veteran served on active duty from March 1997 to May 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In October 2012, the Veteran provided testimony at a personal hearing before the undersigned Veterans Law Judge. The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system. The issue of entitlement to service connection for a chipped upper right molar for treatment purposes only has been raised by the record, but this issue does not appear to have been adjudicated. Therefore, the Board does not have jurisdiction over it, and it is referred to the RO for appropriate action. Specifically, the RO should refer the claim for dental treatment to the appropriate VA Medical Center. The issues of entitlement to service connection for bilateral hearing loss and sleep apnea are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Tinnitus had its onset during service. 2. There is competent evidence that the perforated tympanic membrane has healed. 3. The Veteran's upper right molar is not missing; rather, it was chipped when an improvised explosive device went off. 4. The Veteran has not suffered tooth loss due to loss of substance of the body of maxilla or mandible caused by trauma or disease. CONCLUSIONS OF LAW 1. Tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). 2. A perforated tympanic membrane was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). 3. The claim for service connection for upper right molar, for compensation purposes, is without legal merit. 38 U.S.C.A. §§ 1110, 1712 (West 2002); 38 C.F.R. §§ 3.303, 3.381, 4.150 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Proper VCAA notice 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103(a); C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (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 of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As to the claim for service connection for tinnitus, since the Board is granting the benefit, any failure on the part of VA in connection with the duties to notify and assist is not prejudicial. As to the claim for service connection for a dental disorder, the Veteran has been notified of the reasons for the denial of the claim, and has been afforded the opportunity to present evidence and argument with respect to this claim. The Board finds that these actions are sufficient to satisfy any duties to notify and assist owed the Veteran. As will be explained below, this claim lacks legal merit. As the law, and not the facts, is dispositive of this claim, the duties to notify and assist imposed by the VCAA are not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); see also Manning v. Principi, 16 Vet. App. 534, 542-543 (2002) (the provisions of the VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts are dispositive in a matter). As to the claim for service connection for a perforated tympanic membrane, the Veteran was provided with VCAA notice in an August 2006 letter. See letter. This letter informed him of the evidence necessary to substantiate a claim for service connection, what evidence VA would obtain, what evidence he was expected to provide, and of what assistance VA could provide in obtaining evidence. This letter also informed him of how disability evaluations and effective dates are assigned. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(d). VA will help a claimant obtain records relevant to his claim(s), whether or not the records are in Federal custody, and that VA will provide a medical examination and/or opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has met the duty to assist the Veteran in the development of the claim for service connection for a perforated tympanic membrane. The Veteran's service treatment records have been obtained to the extent possible. VA obtained the VA treatment records and provided the Veteran with a VA examination in 2006. As noted in the Introduction, VA provided the Veteran with a hearing before the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the undersigned fully explained the issue involved. See transcript on page 2. While the undersigned did not suggest the submission of evidence that may have been overlooked, the Board finds there was no prejudice. As to the claim for service connection for tinnitus, this claim is being granted and thus the Veteran cannot be prejudiced by the failure to suggest evidence. As to the claim for service connection for the perforated ear drum, the evidence shows that such perforation has healed, and the Veteran has not attempted to allege that it is still perforated. As to the claim for service connection for the right upper molar for compensation purposes, because this claim is being denied as a matter of law, there can be no prejudice, as the Veteran has not attempted to allege that he has a tooth missing (versus having a chipped tooth). Therefore, to the extent that the Board did not meet all the requirements described in 38 C.F.R. § 3.103(c)(2) and Bryant, there has been no prejudice. For the above reasons, the Board finds the duties to notify and assist have been met, and it may consider these claims at this time. II. Service Connection Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In order to prevail on the issue of service connection, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). At the October 2012 hearing, the Veteran testified that he was exposed to an improvised explosive device at close proximity while in service. He noted that since the accident, he had had continuous ringing in his ears. The Veteran stated that no one had recently looked at his ears. Thus, he stated he was unsure as to the status of his tympanic membrane. He testified that when the explosion occurred, he chipped one of his upper right molars, which was repaired by VA following service discharge. Tinnitus After having carefully reviewed the evidence of record, the Board finds that the evidence supports the award of service connection for tinnitus. Tinnitus is a condition, which is capable of lay observation. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran has reported that his current tinnitus began in service and that he has had continuous ringing since the explosion of the improvised explosive device went off. The Board finds his testimony regarding the origin and continuity of tinnitus since service to be competent, credible, and probative because the presence of tinnitus is not a determination "medical in nature" and is therefore capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Accordingly, service connection for tinnitus is granted. Perforated tympanic membrane After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the grant of service connection for a perforated tympanic membrane. The Board finds as fact that the Veteran's tympanic membrane was ruptured in service at the time of the explosion, as he has alleged; however, there is competent evidence that the perforation has healed. For example, in the September 2006 VA examination report, the examiner checked the Veteran's ear drums and reported that they were intact and normal. Additionally, otoadmittance testing at that time revealed normal ear function, bilaterally. A June 2010 VA treatment record shows the examiner found the Veteran had normal tympanic membranes, bilaterally. Thus, since service discharge, there is no competent evidence of a current perforation of either or both of the tympanic membranes. The Veteran has not attempted to allege that he currently has a perforated tympanic membrane; rather, he has reported he had a ruptured tympanic membrane at the time of the explosion, which fact the Board accepts. However, there is no competent evidence that the Veteran has a current perforated tympanic membrane. In order for service connection to be granted, the evidence must establish, among other things, that the claimant currently has the disability for which service connection is claimed. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability, and in the absence of competent proof of present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, the claim for service connection for a perforated tympanic membrane must be denied. The benefit-of-the-doubt rule is not for application, as not even the Veteran has alleged that the rupture still exists. See Gilbert, 1 Vet. App. at 55. Dental disorder Under current legal authority, compensation is only available for certain types of dental and oral conditions, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla. See 38 C.F.R. § 4.150. Compensation is available for loss of teeth if such is due to loss of substance of body of maxilla or mandible, but only if such bone loss is due to trauma or osteomyelitis, and not to the loss of the alveolar process as a result of periodontal disease, as such loss is not considered disabling. Id. at Note. 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 cannot be considered for compensation purposes. 38 U.S.C.A. § 1712; 38 C.F.R. §§ 3.381, 4.150. Considering the pertinent evidence in light of the governing legal authority, the Board finds that service connection for right upper molar, is not warranted. The Veteran has not alleged that he has a missing tooth, but rather that the upper right molar was chipped in the explosion. Here, the Veteran has a chipped tooth that has been capped. In other words, there is no indication that he has a missing tooth, or a tooth that is unable to be replaced. As such, compensation cannot be awarded for this tooth. 38 U.S.C.A. § 1712; 38 C.F.R. §§ 3.381, 4.150. Although VA does compensate for tooth loss, compensation is only allowed under the criteria set forth in 38 C.F.R. § 4.150. Here, there is no evidence that the Veteran has any tooth loss due to loss of body of the maxilla or mandible caused by in-service trauma or osteomyelitis. The Veteran specifically testified that he chipped a tooth, and thus there is no evidence that the Veteran has tooth loss or loss of the body of the maxilla or mandible. As the Veteran seeks service connection for the upper right molar that was chipped in the explosion, such a condition can only be considered service connected for the purpose of establishing eligibility for outpatient dental treatment-and not for compensation purposes. (The claim for treatment purposes has been referred in the Introduction.) Thus, the claim for service connection for a dental disorder, for compensation purposes, must be denied. Where, as here, the law and not the evidence is dispositive, the claim must be terminated or denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Service connection for tinnitus is granted. Service connection for perforated tympanic membrane is denied. Service connection for replacement of right upper molar, for compensation purposes, is denied. REMAND The Board finds that additional development is needed in connection with the claim involving bilateral hearing loss. The last time the Veteran's hearing was tested was in 2006-more than six years ago. At that time, the Veteran did not have a hearing loss disability for VA purposes as defined by the provisions of 38 C.F.R. § 3.385 (2012). At the October 2012 hearing, the Veteran testified he would have to ask his wife to repeat things at times. The Board finds that a new examination is warranted to see if the Veteran has developed a bilateral hearing loss disability since the September 2006 audiological evaluation and, if so, whether it is due to in-service noise exposure, including the explosion. Thus, the Board is remanding this claim for a new audiological evaluation. As to the claim for service connection for sleep apnea, in a January 2009 rating decision, the RO denied the claim. In February 2010, the Veteran submitted a notice of disagreement as to the denial. The RO has not issued a statement of the case addressing this claim, and thus the claim is remanded solely for the purpose of the RO/AMC to issue a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999) (Court held where a notice of disagreement is filed but statement of the case has not been issued, Board must remand the claim so that statement of the case may be issued). However, this issue will be returned to the Board after issuance of the statement of the case only if the Veteran files a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should send the Veteran a statement of the case on the issue of entitlement to service connection for sleep apnea. The Veteran should be given the opportunity to thereafter perfect an appeal on this issue by filing a timely substantive appeal. The claim will thereafter be subject to appellate review only if the appeal has been properly perfected. 2. Schedule the Veteran for a VA examination to determine whether the Veteran has a bilateral hearing loss disability. If the audiological evaluation reveals the Veteran has a current hearing loss disability as defined by VA, the examiner is requested to furnish an opinion concerning whether it is at least as likely as not (50 percent or greater) that the Veteran's current hearing loss disability is related to exposure to acoustic trauma during his military service, which includes the explosion of the improvised explosive device that occurred in August 2005. Any opinion expressed should be accompanied by a complete rationale. 3. Thereafter, ensure that the development above has been completed in accordance with the remand instructions; undertake any other development action that is deemed warranted, and re-adjudicate the issue of service connection for bilateral hearing loss. If the claim remains denied, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the 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 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. 2012). __________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs