Citation Nr: 1310583 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 11-02 567 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for dental injury (claimed as all upper teeth). 2. Entitlement to an initial compensable disability rating for bilateral hearing loss prior to October 13, 2011, and in excess of 10 percent thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran had active service from March 1944 to May 1946. 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 Cleveland, Ohio. In November 2011, the initial evaluation for bilateral hearing loss was increased from a noncompensable evaluation to 10 percent, effective October 13, 2011. The claim remains in controversy because the rating is less than the maximum available benefit awardable. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran testified at a February 2013 videoconference hearing. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to an initial increased rating for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The record does not show that the Veteran currently has a dental disability for VA compensation purposes. CONCLUSION OF LAW The criteria for service connection for a dental injury for VA disability compensation purposes have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.381, 4.150 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The 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). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Board finds that the VCAA duty to notify was satisfied by a letter sent to the Veteran in November 2008 with regard to the claim for service connection for dental injury. The letter addressed all of the notice elements and was sent prior to the initial unfavorable decision by the Agency of Original Jurisdiction (AOJ) in July 2009. The duty to assist was also met in this case. The service treatment records are in the claims file. All pertinent post-service treatment records have been obtained and associated with the file. The Veteran testified at the February 2013 videoconference hearing that he currently receives dental treatment through the VA Medical Center; however, he clarified that the treatment is for cleanings and general dental maintenance only. He indicated that he was not seeking compensation for such treatment but rather for bridge work that he received from a private dentist that he felt was a result of in-service dental trauma. As such, the Board finds that obtaining the outstanding VA dental treatment records would not provide any further evidence in support of his claim for service connection for dental injury, and thus, remanding the claim to obtain the records would be futile. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). Also, the Board finds that a VA examination is not necessary with respect to the Veteran's claim of service connection for dental injury. As set forth in more detail below, the evidence does not show, nor has the Veteran contended, that he currently has a compensable dental disability. Rather, he contends that service connection is warranted because he incurred in-service trauma to his mouth which eventually led to having bridge work done on his teeth. Repaired teeth, however, are not disabilities for VA compensation purposes. See 38 C.F.R. §§ 3.381, 4.150 (2012). Absent competent evidence of a current compensable dental disability or persistent or recurrent symptoms thereof, an examination is not necessary. For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. LAW AND ANALYSIS Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110. Service connection may also 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). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Notwithstanding the foregoing, under current VA regulations, service connection for VA compensation purposes is only available for specified dental and oral conditions which are specifically delineated in 38 C.F.R. § 4.150. A Veteran may be entitled to service connection for other dental conditions, including treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease, for the sole purposes of receiving VA outpatient dental services and treatment, if certain criteria are met. 38 U.S.C.A. § 1712 (West 2002); 38 C.F.R. §§ 3.381(a), 17.161 (2012). The dental and oral conditions which may be service-connected for VA compensation purposes are delineated at 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916 (2012) and include chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible (Diagnostic Code 9900). Compensation is also available for loss of teeth but only if such loss is due to loss of substance of body of maxilla or mandible due to trauma or due to disease such as osteomyelitis, but not due to the loss of the alveolar process as a result of periodontal disease. See 38 C.F.R. § 4.150, Diagnostic Code 9913, Note (2012). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran seeks service connection for a dental injury. Specifically, he contends that he underwent dental bridge repair as a result of an incident during service in which he was hit in the mouth several times by a recoiling gun. The Veteran submitted a statement from a former shipmate who reported that recoil from a gun hit the Veteran in the mouth and broke his teeth. An October 1945 service treatment record shows that the Veteran was diagnosed with abscess, dento-alveolar, acute. The records do not show that the Veteran sustained injury or trauma to his mouth. In a September 2008 letter, M.B.C, D.D.S., reported that the Veteran had a fixed bridge completed from teeth #'s 8 to 12 in July 1975. Dr. C. also reported that the Veteran "states that the bridge was necessary due to damage sustained from being hit in the mouth several times by a recoiling gun. This was reported to have occurred while shooting down an enemy aircraft during combat service." Dental records from Dr. C. have been associated with the claims file. The Veteran testified at the February 2013 hearing that the ship that he served on did not have facilities to replace his teeth so he waited until the war was over. He indicated that his last bridge that he received cost him $7000 and that he feels that he should be compensated for this cost. After carefully considering the evidence of record, including the Veteran's contentions, the Board finds that the preponderance of the evidence is against the claim of service connection for dental injury for purposes of VA disability compensation. Initially, the Board notes that tooth abscess and infection in service does not constitute dental trauma in service. See 38 U.S.C.A. § 1712; 38 C.F.R. §§ 3.381, 17.161; See also 38 U.S.C.A. § 7104(c); Nielson v. Shinseki, 607 F.3d 802, 804 (Fed. Cir. 2010) (holding that service trauma under the statute is an injury or wound produced by an external physical force during the performance of military duties, and does not include the intended result of proper medical treatment). The Veteran contends that he underwent dental bridge repair as a result of an incident during service in which he was hit in the mouth several times by a recoiling gun. As noted in 38 C.F.R. § 4.150, tooth extraction with bridge replacement, is not considered a dental disability for VA compensation purposes. See 38 C.F.R. §§ 3.381, 4.150 (2012). The record otherwise contains no indication the Veteran currently exhibits any potentially compensable dental disability, such as osteomyelitis or osteoradionecrosis of the maxilla or mandible; loss of the mandible, maxilla, ramus, or coronoid process; loss of the hard palate, not replaceable by prosthesis; nonunion of the mandible; limited motion of the temporomandibular articulation; or loss of teeth due to loss of substance of the body of the maxilla or mandible, which was incurred in service. Id. Indeed, he has not specifically contended otherwise. Further, the record fails to specify the nature of the dental condition claimed, the specific teeth implicated, or the facial bony structured affected. There is no objective evidence of any dental condition for compensation purposes, or otherwise. In essence, there is no present disability shown. A current disability is a prerequisite to service connection under any theory of entitlement. Brammer, 3 Vet. App. at 225. The Veteran is competent to report having injured his mouth during service. With respect to whether the Veteran's own testimony can establish a current disability here, in Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition 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. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. In this case, the criteria under Jandreau have not been met. A current dental disability for VA compensation purposes has not been established either through the clinical record or the Veteran's own statements. Thus, the claim must fail. In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for dental injury is denied. REMAND The Board finds that further evidentiary development is necessary before a decision can be reached on the merits of the Veteran's claim for a higher initial rating for bilateral hearing loss. The Veteran underwent a VA audiology examination in October 2011 to evaluate the severity of his hearing loss. However, the Veteran testified at the February 2013 videoconference hearing that he last had his hearing tested at the Erie VA Medical Center (VAMC) two to three weeks prior to the hearing. All VA records are constructively of record. Bell v. Derwinski, 2 Vet. App. 611 (1992). Consequently, on remand, the RO should attempt to obtain the Veteran's complete VA medical records. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO must obtain all VA treatment records from the Erie, Pennsylvania VAMC. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) (2012) regarding requesting records from Federal facilities. Any other sources of treatment records identified by the Veteran should also be contacted. All records and/or responses received should be associated with the claims file. If any records sought are determined to be unavailable, the Veteran must be notified of that fact pursuant to 38 C.F.R. § 3.159(e) (2012). 2. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. The RO should also undertake any other development it determines to be indicated. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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 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). _________________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals