Citation Nr: 1312100 Decision Date: 04/11/13 Archive Date: 04/19/13 DOCKET NO. 09-27 135 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for interstitial parotitis (claimed as jaw disability). 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from May 1952 to March 1954. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In October 2011, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO. A hearing transcript is of record. When this case was previously before the Board in October 2012, the claims for entitlement to service connection for tinnitus and for interstitial parotitis, as well as claims for entitlement to service connection for bilateral hearing loss and for residuals of cold injury of the upper and lower extremities, were remanded for additional development. In March 2013, a rating decision was issued granting service connection for bilateral hearing loss and granting service connection for cold injury residuals of both hands and both knees. These issues were, therefore, granted in full and are no longer within the Board's jurisdiction. The issues of entitlement to service connection for tinnitus and interstitial parotitis have been returned to the Board for further appellate action. Finally, the Board observes that the U. S. Court of Appeals for Veterans Claims has held that a claim for service connection for a dental disorder is also a claim for VA outpatient dental treatment. See Mays v. Brown, 5 Vet. App. 302 (1993). It appears that the Veteran's present claim for interstitial parotitis was initially claimed as a jaw disability, and that the Veteran's contention is that his post-service loss of teeth is due to the in-service treatment of the jaw. This claim, as it has been developed on appeal, has been treated by the RO only as a claim for compensation. This compensation claim is properly before the Board and is decided below. Significantly however, it does not appear that the RO has yet referred the Veteran's parallel dental treatment claim to the VA Medical Center of jurisdiction for initial consideration. Accordingly, the issue of whether the Veteran is eligible for VA dental treatment is referred to the RO to clarify whether adjudication of that claim has already taken place, and if not, to ensure that such is accomplished. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). In addition to the paper claims file, there is an electronic claims file associated with the Veteran's claims. A review of the documents in the electronic file reveals that they are entirely duplicative of the evidence in the paper claims file. FINDINGS OF FACT 1. A jaw disability, to include interstitial parotitis, has not been present during the pendency of this claim, and the Veteran's loss of teeth is shown by the medical evidence to be due to periodontal disease. 2. The Veteran's tinnitus is related to his in-service noise exposure. CONCLUSIONS OF LAW 1. A jaw disability, to include interstitial parotitis, was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303, 3.381 (2012). 2. Tinnitus was incurred in active duty. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). As regards the tinnitus claim, the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claim. In addition, the Board has determined that the evidence currently of record is sufficient to establish the Veteran's entitlement to service connection for tinnitus. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A or 38 C.F.R. § 3.159. As regards the interstitial parotitis claim, the record reflects that the Veteran was provided all required notice in a letter mailed in December 2007, prior to the initial adjudication of the claim in August 2008. All appropriate development to obtain the Veteran's pertinent, available service treatment records (STRs) and post-service VA and private medical records has been completed. The Board observes that the Veteran's STRs were damaged by fire, but not destroyed. The retrievable portion is included in the claims file and includes the relevant evidence related to the Veteran's jaw treatment in-service, which is discussed in pertinent part in the decision, below. The Board remanded the Veteran's claims in March 2012 to assist the Veteran in obtaining outstanding private treatment records. The Veteran, however, did not respond to VA's March 2012 letter requesting signed authorizations to obtain treatment records. Further, he has not identified any pertinent, outstanding records that could be obtained to substantiate his claim. The Board is also unaware of any such records. Moreover, the Veteran has been afforded an appropriate VA examination, the report of which is also discussed in pertinent part, below. Accordingly, the Board concludes that VA has complied with its duty to assist the Veteran. Accordingly, the Board will address the merits of the claims. II. Legal Criteria Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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). "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). 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; 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. III. Factual Background and Analysis In this case, initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to each claim. Tinnitus At the October 2011 travel Board hearing, the Veteran testified that he had exposure to in-service acoustic trauma, to include during his tour in Korea with the 69th Chemical Company, which worked with and supported an artillery unit. The Board, in its March 2012 remand, accepted the Veteran's report of in-service noise exposure as competent. Moreover, the Appeals Management Center recognized the Veteran's unit as being in support of an artillery unit in service and thereby recognized the Veteran's likelihood of military noise exposure as "highly probable" based upon VA's Military Occupation Specialty Noise Exposure Listing. Thus, VA recognizes that the Veteran had in-service noise exposure, and it was on this basis that he was granted service connection for sensorineural hearing loss. The Veteran also reported at his hearing that he had no significant occupational or recreational noise exposure after service. A private audiologist submitted a report in December 2007, after the Veteran had seen him for an analysis of his hearing loss. The examiner concluded that the Veteran had, "tinnitus and sensorineural hearing loss due to noise induced trauma while in active military service." In September 2008, the Veteran submitted a statement noting that during his tour in Korea, he experienced noise from guns and that he was in close proximity to incoming shells and explosions after which he had ringing in his ears. The Veteran reported at that time that he had the ringing in his ears ever since his Korea tour. At the time of his October 2011 hearing, the Veteran reported that he had ringing in his ears, which began in Korea and continued until approximately four to five months prior to the hearing. While the Veteran did not characterize his symptom as "ringing" in his ears at the time of the hearing, he did report that he does continue to have a "constant buzz or hum" in his ears. Following the hearing, the Board remanded the matter for an examination and opinion from a VA examiner. In June 2012, a VA audiologist completed a Disability Benefits Questionnaire related to the Veteran's tinnitus claim. The entirety of the VA examiner's opinion included answering "No" to "Does the Veteran report recurrent tinnitus?" and answering "Yes" to "Was the Veteran's VA claims file reviewed?" and, finally stating, "The Veteran does not report tinnitus." The Veteran's service connection claim was filed in October 2007. Since that time, the Veteran has obviously reported tinnitus to the private physician that provided the positive nexus opinion in December 2007, as well as to VA in September 2008, and to the undersigned Veterans Law Judge at the October 2011 hearing. Thus, it is unclear to the Board why the VA examiner ignored the various reports of tinnitus throughout the time period since the Veteran initially filed his claim. Moreover, it is unclear to the Board why the VA examiner ignored the Veteran's consistent reports of ringing (buzzing or humming) in his ears that has existed since his tour in Korea. Because the VA examiner ignored virtually all of the relevant evidence in the claims file, the Board finds the VA examination report to be of little to no probative value in this analysis. Thus, the record is left with the Veteran's confirmed in-service acoustic trauma, as well as his reports of ringing/buzzing/humming in the ears, which has existed, at least intermittently, ever since his tour in Korea, as well as the private audiologist's opinion that the Veteran's tinnitus was caused by this in-service acoustic trauma. Furthermore, the Veteran is competent to testify as to symptoms such as buzzing in the ears, because this symptom is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Layno, supra. Given the statements from the Veteran, the Board finds the Veteran's assertions of tinnitus dating back to service to be credible. In fact, the Board has no reason to doubt the credibility of the hearing testimony and written statements regarding the onset of the Veteran's symptoms. Moreover, as the noise exposure has been conceded, there is also no reason to question the credibility of the private physician's report and positive nexus opinion. The Veteran is currently experiencing tinnitus, as noted throughout the course of this claim and appeal. Thus, the Veteran's statements related to his symptoms in combination with the private physician's positive nexus opinion and the confirmed in-service acoustic trauma enable a grant of service connection for tinnitus. At the very least, given the above evidence, the Board finds that there is an approximate balance of positive and negative evidence as to whether the Veteran currently has tinnitus that is related to his noise exposure in service. When the evidence is in such relative equipoise, the Board must give the Veteran the benefit of the doubt. See Gilbert, supra. Resolving the benefit of the doubt in the Veteran's favor, and without ascribing error to any action of the RO, the Board finds that the criteria for service connection for tinnitus are met. Interstitial Parotitis The Veteran contends that he is entitled to service connection for interstitial parotitis, as he contends that his in-service treatment of the jaw caused a current disability. The Veteran's STRs show in-service treatment related to the Veteran's jaw. In particular, in May 1953 an STR shows that the Veteran was to be admitted to the hospital related to sialadenitis left parotid chronic, causes unknown. He had sought treatment due to a swollen jaw for the prior month. The clinical notes show that there was deemed a possible stone in the parotid duct. The physician noted that there was a probable obstruction of the parotid duct due to the stone. The diagnosis was noted as parotitis. A radiology report with a date noted to be in June 1954 shows, "no evidence of parotid gland or duct calculi on the left." In that the Veteran was discharged from service prior to June 1954, this is a presumed typographical error. The report of the March 1954 the separation examination shows that no abnormality related to the parotitis was found. At the October 2011 hearing, the Veteran reported that following his in-service hospitalization and surgery related to the parotitis, he did not have any problems with his jaw, but that he did lose all but one tooth. The Veteran reported that shortly following his discharge from active service a dentist pulled all but one tooth, although the Veteran could not recall the reason for this. The sole remaining evidence related to the Veteran's claim is the August 2008 VA/QTC examination report. At this time, a physical examination confirmed that the Veteran has a loss of all teeth but for #22, including loss of masticatory surface. The examiner confirmed that the loss of teeth was due to periodontal disease. With respect to dental disabilities, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease, are not disabling conditions, and may be considered service-connected solely for the purpose of determining entitlement to dental examinations or outpatient dental treatment under the provisions of 38 C.F.R. § 17.161. 38 C.F.R. § 3.381. Panoramic X-ray results at the time of the QTC examination were noted to be within normal limits. The Veteran is reported to have told the examiner that the condition experienced in-service had not recurred since 1954. The examiner concluded that the in-service parotitis had resolved many years prior and that there was no current diagnosis related to the Veteran's claimed jaw condition. Thus, the evidence of record, to include the STRs, the Veteran's lay statements and the 2008 QTC examination report, fails to show that the Veteran has a current diagnosis of a jaw condition for which service connected can be awarded. With respect to whether the Veteran's own statements 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 disability has not been established either through the clinical record or the Veteran's own statements. The evidence available to evaluate the Veteran's claim is significantly limited, as the Veteran himself confirms that he was not treated for his jaw subsequent to 1954, more than fifty years ago. The only abnormality noted by the VA examiner was the missing teeth deemed due to periodontal disease, which is not a disability for VA purposes, as noted above. As the Veteran has not shown a current disability for which service connection can be granted, the claim for service connection for interstitial parotitis (claimed as jaw disability) must be denied. The Board has duly considered the benefit of the doubt doctrine. 38 U.S.C.A. § 5107; see also Gilbert, supra. However, the preponderance of the evidence is against the Veteran's claim, so that doctrine is not applicable to this claim. ORDER Service connection for tinnitus is granted. Service connection for interstitial parotitis (claimed as jaw disability) is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs