Citation Nr: 1318056 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 09-41 993A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for the loss of teeth nos. 3, 13, 14, 19, 20, and 30 for the sole purpose of compensation benefits. 2. Entitlement to a compensable initial rating for bilateral sensorineural hearing loss. 3. Entitlement to an initial rating greater than 20 percent for shell fragment injury to the left pectoralis major, left anterior serratus, and left latissimus muscles and residual scar, left upper chest wall. 4. Entitlement to a compensable initial rating for right forearm scar, residual of shell fragment wound. 5. Entitlement to an initial rating greater than 30 percent for dysthymia, with comorbid posttraumatic stress disorder (PTSD) symptoms. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from December 1966 to May 1969. This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. As indicated above, the Veteran has filed a claim for a dental disability, specifically the loss of all his upper teeth. Service connection for a dental disorder is compensable under certain circumstances, but also raises a claim for service connection for outpatient dental treatment purposes. Mays v. Brown, 5 Vet. App. 302 (1993). In this case, the February 2007 rating decision merely denied the Veteran's dental claim for compensation benefits. The RO never explicitly developed or adjudicated any outpatient dental treatment aspect of the Veteran's dental claim. As will be discussed in greater detail below, however, the Veteran was granted outpatient dental treatment for these teeth in 1969, with removable dentures provided for teeth that included numbers 3, 13, 14, 19, 20, and 30. The Veteran's statements further clarify that his current claim is solely for compensation benefits. In addition, to the foregoing, the Board notes that in a document submitted with his November 2009 substantive appeal the Veteran claimed that he had been service connected for tinnitus, but that he had not been given a compensable rating for the disability. In that regard, the Board notes that the February 2007 rating decision granted entitlement to service connection for tinnitus and assigned a 10 percent disability rating, effective from December 27, 2005. Thus, the Veteran's contention is without merit and as the November 2009 statement did not constitute a timely notice of disagreement with the February 2007 rating decision and the assigned 10 percent rating is the maximum rating permitted for tinnitus (see 38 C.F.R. § 4.87, Diagnostic Code 6260 (2012)), the Board concludes that no further discussion of the foregoing is warranted. The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA electronic claims file to ensure a total review of the evidence. The issues of entitlement to increased ratings for hearing loss, dysthymia with PTSD symptoms, and shell fragment injuries to the left upper chest and right forearm 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. FINDING OF FACT The Veteran does not have a dental condition resulting from a combat wound, service trauma, or a disease other than periodontal disease. CONCLUSION OF LAW Service connection for the loss of teeth nos. 3, 13, 14, 19, 20, and 30 for the sole purpose of compensation benefits is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.381 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. 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 or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's dental claim, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2008); 38 C.F.R. § 3.159(b) (2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran 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 Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in February 2006 and March 2006 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The letters informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The March 2006 letter also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced Veterans Service Organization and has submitted argument in support of his claims. These arguments have referenced the applicable law and regulations necessary for a grant of entitlement to service connection. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claims and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA dental treatment records from 1969 and 1970 are in the file. The Veteran has not otherwise reported treatment at VA for his claimed disabilities. All private records identified by the Veteran as relating to the claim have been obtained, to the extent possible. Furthermore, the Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. With regard to service connection claims, the Court held in the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. In this case, the Board concludes a VA dental examination is not necessary. Service treatment records confirm the Veteran had various teeth missing at the time of separation from service, specifically teeth numbers 14, 19, and 30. As the Veteran's entrance examination is not of record, the Board will presume that his claims that the teeth were removed during basic training are accurate. In addition, the Veteran was granted entitlement to service connection for dental treatment purposes and in 1969 and 1979 teeth numbers 3, 13, and 20 were removed. As will be explained in more detail below, service connection for compensation purposes is not available for a dental condition other than one resulting from dental trauma. VA's General Counsel held that dental treatment of teeth, even extractions, during service did not constitute dental trauma. See VAOPGCPREC 5-97. However, there is no medical evidence or lay allegation that the Veteran's teeth were removed due to trauma or injury in service, including those teeth removed by VA following separation from service. Indeed, the February 2006 notice letter specifically asked the Veteran to describe the nature of his in-service injury. Instead, the Veteran's contentions have always been based solely on the receipt of in-service treatment for his teeth, including their extraction, as well as similar treatment with VA shortly after separation from service. In light of the dispositive nature of the law in this case, the Board finds a VA examination and medical opinion would serve no useful purpose. The facts are not in dispute. It is uncontested the Veteran had in-service extractions of multiple teeth during basic training, that after service he had three more teeth removed and received removable dentures from VA, and that he subsequently had permanent teeth implanted by a private treatment provider. As there is no medical evidence or lay contention of in-service trauma that caused the teeth to be removed, the Board finds no indication that the claim may be substantiated and, thus, no VA examination is necessary to decide this issue. Cf. McLendon, 20 Vet. App. 79. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110, 1131 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish a right to compensation for a present disability on a direct basis, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran, in this case, is claiming that four teeth were extracted during boot camp, with several more extracted by VA following service, and for which VA provided him with removable, temporary dentures. The Veteran has not contended that any of the teeth were removed as the result of trauma or injury incurred during service. Initially, the Board notes that although the Veteran engaged in combat during service in Republic of Vietnam, he contends that teeth numbers 14, 19, 30, and potentially one other tooth were removed during basic training and the evidence of record clearly establishes that teeth numbers 3, 13, and 20 were removed by VA after service due to periodontal disease. As will be discussed there is no allegation or contention that the removal of these teeth was related to trauma or other events occurring during combat operations. As such, the provisions of 38 U.S.C.A. § 1154(b) (West 2002) are not for application. The Board acknowledges that the Veteran is competent to give evidence about what he experienced; for example, he is competent to discuss his current pain and other experienced symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Generally, however, he is not competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because he does 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); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). The Veteran's service treatment records do not include complaints or treatment for dental problems. That said, his April 1969 separation examination did note that teeth numbers 14, 19, and 30 had been removed, that tooth number 3 was nonrestorable, and that teeth numbers 1, 2, 4, 5, 12, 13, 20, 31, and 32 were restorable. After service, in August 1969 the Veteran filed a claim for entitlement to service connection for outpatient dental treatment. Specifically, the disease or injury for which his claim was based was, "Extractions - fillings - cleaning". In the application, the Veteran explicitly denied that the dental condition for which he desired treatment was the result of combat wounds or trauma (injury) to the face or jaw. Under applicable criteria, 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 as provided in 38 C.F.R. § 17.161 (2012); 38 C.F.R. § 3.381(a) (2012). As noted above, the Veteran was service-connected for outpatient dental treatment with services received in 1969 and 1970, and his current claim is limited solely to service connection for the purpose of compensation benefits. The Veteran was granted entitlement to Class II VA outpatient dental treatment in 1969. During his subsequent VA outpatient dental treatment, in December 1969 tooth number 3 was surgically removed, followed in March 1970 by the removal of teeth numbers 13 and 20. As to each of these teeth, the dental records indicate that extraction was necessary due to caries involving the pulp of the tooth. In June 1970, the Veteran had maxillary and mandibular partial dentures inserted. At that time, the record indicated that treatment was completed and Class II benefits exhausted. As noted above, the Veteran does not contend that any of his teeth were treated or removed as a result of trauma or other injury during service. Indeed, at the time of his August 1969 application for entitlement to service connection for outpatient dental treatment he denied that his dental problems were the result of trauma to the face or jaw. Instead, the Veteran merely notes that several teeth were removed during basic training and others after service by VA. Service connection for compensation purposes can only be established 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 due to loss of substance of the body of the maxilla or mandible. See Simmington v. West, 11 Vet. App. 41 (1998). For loss of teeth, bone loss through trauma or disease such as to osteomyelitis must be shown for purposes of compensability. The loss of the alveolar process as a result of periodontal disease is not considered disabling. 38 C.F.R. § 4.150, DC 9913, Note (2012). It should be noted that for the purposes of determining whether a veteran has treatment eligibility, the term "service trauma" does not include the intended effects of treatment provided during the Veteran's military service. The regulations are intended to cover dental trauma involving external, sudden-force injury, such as a combat wound to the teeth and jaw. VAOPGCPREC 5-97 (1997); see also Nielson v. Shinseki, 23 Vet. App. 56, 60-61 (2009). In this case and as outlined above, the medical evidence and lay testimony of record do not indicate any sort of in-service dental trauma or disease other than dental caries. Indeed, the Veteran conceded in August 1969 when filing his initial claim for entitlement to service connection for the purpose of outpatient dental treatment that his dental problems were not based on any in-service trauma (injury). Similarly, no medical professional has attributed the Veteran's dental problems to any traumatic incident of military service. In short, the Veteran simply does not have a dental disability that can be service-connected for compensation purposes. Although he believes that his current dental conditions constitute disability for compensation purposes and were caused by military events, he is a layman and has no competence to offer a medical diagnosis on a complex matter such as this, especially given his acknowledgement that he did not suffer trauma that caused his current dental problems. Jandreau, 492 F.3d at 1377. The facts of the case are not in dispute. As demonstrated above, there is no evidence that the Veteran has bone loss resulting in the loss of teeth from dental trauma or disease such as osteomyelitis. For these reasons, the Board concludes that the arguments of the Veteran and his representative are without merit and the Veteran's claim for entitlement to service connection for the loss of teeth numbers 3, 13, 14, 19, 20, and 30 for compensation purposes is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim on the ground of lack of legal merit). ORDER Entitlement to service connection for the loss of teeth nos. 3, 13, 14, 19, 20, and 30 for the sole purpose of compensation benefits is denied. REMAND The Veteran also is seeking increased or compensable ratings for hearing loss, dysthymia with PTSD symptoms, and shell fragment injuries to the left upper chest and right forearm. After a complete review of the Veteran's claims file, the Board concludes that additional development is necessary prior to the adjudication of these claims. Hearing Loss The Veteran contends that his service-connected bilateral sensorineural hearing loss warrants a compensable rating. In relevant part, the Veteran has claimed that his May 2006 VA audiological examination was inadequate because it was tested in a soundproof booth, without outside noises, and in an "un-real world" environment. In that regard, according to VA's Handbook of Standard Procedures and Best Practices for Audiology Compensation and Pension Examinations, the "purpose of speech recognition testing is to obtain the patient's best performance under optimum, controlled, and reproducible conditions. Therefore, live voice presentation of speech stimuli is not allowed. The speech recognition score is not intended to simulate real-world performance." Id. (emphasis original). Therefore, the Board finds that the May 2006 VA examination was conducted in a regular manner. See Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001) ("The [presumption of regularity] doctrine thus allows courts to presume that what appears regular is regular, the burden shifting to the attacker to show the contrary."). In addition, the Veteran has argued that his responses to the speech recognition testing were not accurate because in certain instances he was merely guessing. See Veteran's November 2009 statement. The Board finds this contention problematic, as the May 2006 speech recognition results potentially do not accurately reflect the severity of his bilateral hearing loss disability. As such, the Board concludes that another VA examination is warranted. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); see also Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion or ordering a medical examination). Dysthymia with PTSD Symptoms The Veteran also contends that his current 30 percent rating for dysthymia with PTSD symptoms does not accurately reflect the severity of his condition. In a November 2009 statement, the Veteran contended that certain aspects of his June 2006 VA psychiatric examination were inadequate. For example, he indicated that the notation of one to two dreams per month about military service was inaccurate. He also stated that contrary to previous representations his psychiatric medications were not effective. In addition, he stated that on certain occasions he had underreported his symptoms. Moreover, the Veteran claimed that he did not discuss all of his traumatic in-service experiences with the June 2006 VA examiner because he had never previously met the examiner. In light of these representations, the Board concludes that another VA examination is required to consider the Veteran's PTSD symptomatology and its effect on his functioning. See id. Shell Fragment Wounds to the Left Upper Chest and Right Forearm Finally, the Veteran asserts that his current 20 percent rating for residuals of the shell fragment wounds to his left upper chest and separate noncompensable rating for residual shell fragment wound scars to his right forearm do not accurately represent the severity of his conditions. In that regard, the February 2007 rating decision references and discusses VA examinations conducted on June 27, 2006 and July 31, 2006. These examination reports have not been associated with the Veteran's paper claims file or Virtual VA electronic claims file. The Board notes that there is a notation in the paper claims file from June 27, 2006 that a new examination for the Veteran's right arm shell fragment wound should be scheduled because the Veteran had an orthopedic appointment on July 31, 2006. There also is a notation from August 14, 2006 attached to the same document noting that the Veteran's "muscle exam" needed to be rescheduled. Thus, it is unclear from the record whether the VA examinations referenced in the February 2007 rating decision actually occurred. On the other hand, the February 2007 rating decision discussed information not contained in the two relevant VA examinations of record, from June 8, 2006 and September 8, 2006. As such, a remand is required to all the RO/AMC the opportunity to associate the relevant VA examinations with the Veteran's claims file. Furthermore, in his substantive appeal in November 2009, the Veteran asserted that he has residuals of the shell fragment wound to the chest that are not currently compensated. He spoke to muscle weakness, but also difficulty breathing. As the Veteran has asserted a worsening of symptoms since his last VA examination, a new examination is required to assess the current severity of the disability. Accordingly, the case is REMANDED for the following action: 1. Associate the June 27, 2006 and July 31, 2006 VA examinations referenced in the February 2007 rating decision with the claims file. If such records do not exist or otherwise cannot be obtained, a full written explanation should be associated with the claims file. 2. Obtain any pertinent clinical treatment records from VA for the Veteran that have not yet been associated with the claims file. 3. Schedule the Veteran for a VA audiological examination to ascertain the current severity of the Veteran's bilateral hearing loss. The claims file should be provided to the appropriate examiner for review and the examiner should note that it has been reviewed. 4. Schedule the Veteran for a VA examination to ascertain the current severity of his dysthymia, with comorbid PTSD symptoms. The claims file should be provided to the appropriate examiner for review and the examiner should note that it has been reviewed. 5. Schedule the Veteran for a VA examination to ascertain the current severity of his shell fragment injury. The claims file should be provided to the appropriate examiner for review and the examiner should note that it has been reviewed. The examiner is asked to determine all current residuals of the shell fragment wound, to include whether the Veteran has muscular, skeletal, respiratory, or other residuals. 6. After the above is complete, readjudicate the Veteran's claims. If a complete grant of all the benefits requested is not awarded, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, 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 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). ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs