Citation Nr: 1333415	
Decision Date: 10/24/13    Archive Date: 10/24/13

DOCKET NO.  08-25 583	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for concussion residuals.

2.  Entitlement to service connection for a dental disability, for compensation purposes.

3.  Entitlement to service connection for hypertension.

4.  Entitlement to service connection for a heart disability.

5.  Entitlement to service connection for a bilateral lung disability.

6.  Entitlement to service connection for a cervical spine disability.

7.  Entitlement to service connection for a lumbar spine disability.

8.  Entitlement to service connection for a right knee disability.

9.  Entitlement to service connection for a bilateral ankle disability.


REPRESENTATION

Veteran is represented by:  Alabama Department of Veterans Affairs


ATTORNEY FOR THE BOARD

L. Cramp, Counsel


INTRODUCTION

The Veteran had active service from November 1973 to September 1979, with subsequent periods of active duty for training and inactive duty training in the Army Reserve.  This appeal comes before the Board of Veterans' Appeals (Board) from an August 2006 rating decision of the RO in Montgomery, Alabama.

Although the Veteran's notice of disagreement was initially interpreted by the RO as including disagreement with the noncompensable ratings assigned for a lower left umbilical hernia, a left inguinal hernia, residuals of multiple rib fractures, and the denial of a 10 percent rating based on multiple noncompensable service-connected disabilities, the Veteran did not perfect appeals as to those issues, but specified on the VA Form 9 that he was only perfecting appeals as to the claims of entitlement to service connection.  As the Veteran expressed his intent not to perfect those appeals, the Board has no jurisdiction regarding those claims.  See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.200 (2013).  

The Board notes that the Veteran submitted additional evidence after the most recent July 2013 supplemental statement of the case; however, there is no need to remand the appeal for RO consideration of this evidence or to request a waiver of the Veteran's right to initial RO consideration from the Veteran as the evidence consists entirely of duplicate copies of records already submitted by the Veteran.  

In reviewing this case the Board has not only reviewed the physical claims file, but also the file on the "Virtual VA" system to insure a total review of the evidence.  

The issue of entitlement to service connection for a dental disability 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 a right knee disability, bilateral ankle disabilities, a cervical spine disability, and a lung disability are addressed in the REMAND below and are therein REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC.


FINDINGS OF FACT

1.  All notification and development action needed to fairly adjudicate the appeal has been accomplished.

2.  The Veteran's in-service dental injury did not result in the loss of substance of the body of the maxilla or mandible.

3.  There is no current lumbar spine disability and no current concussion residuals.  

4.  The Veteran did not become disabled due to hypertension or heart disease in the line of duty during a period of active duty for training.  

5.  Heart disease and hypertension were not incurred during active duty and are not otherwise related to active duty. 

6.  Symptoms of heart disease and hypertension were not continuous after separation from active duty service.  


CONCLUSIONS OF LAW

1.  The basic criteria for service connection for concussion residuals are not met.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013).

2.  Service connection for a dental disability for compensation purposes is not warranted as a matter of law.  38 U.S.C.A. §§ 1110, 1712, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.381, 4.150 (2013).

3.  The basic criteria for service connection for a lumbar spine disability are not met.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013).

4. Hypertension and heart disease were not incurred in service are not presumed to have been incurred in service.  38 U.S.C.A. §§ 337, 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Notice and Assistance

Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011).

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002).  This notice must be provided prior to an initial RO decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  VCAA notice requirements apply to all five elements of a service connection claim, including:  (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, 486 (2006). 

Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law.  Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009).  Defective timing may be cured by a fully compliant notice letter followed by a readjudication of the claim.  Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). 

Here, VA's duty to notify has been satisfied.  38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b).   August 2005 and March 2006 letters provided the Veteran the required notice prior to initial adjudication of the claims.  Additionally, the Veteran was represented by a certified veterans' service organization throughout the claims process.  Accordingly, VA's duty to notify has been satisfied.  

VA's duty to assist the Veteran has also been satisfied.  38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3).  Many of the Veteran's service treatment records (STRs) were provided by the Veteran.  Also of record are VA medical records and private medical records.  The Veteran's STRs were certified by the RO to be unavailable from official sources.  In these circumstances, when a Veteran's STRs are unavailable through no fault of his own, VA's duties to assist, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule are heightened.  Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)).  The Board notes that the Veteran has submitted a substantial number of STRs, including his service entrance and separation examination reports, as well as documents pertaining to the injuries in 1999.  In this case, the Board's decision is not based substantially on the absence of records, but on what the service records demonstrate.  Moreover, although the Board herein remands for SPRs, any inservice concussion or lumbar spine injury or symptom would still not be service-connected as there are no current disabilities; these claims may thus be properly ajdudicated.  

Additionally, VA did not provide the Veteran with medical examinations for concussion residuals, a lumbar spine disability, the heart and hypertension claims, and the dental claim but none are required.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159.  Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains:  (1) competent lay or medical evidence of disability or recurrent or persistent symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability.  38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006).  Here, regarding the concussion residuals and lumbar spine disability, as is discussed further below, the evidence of record does not indicate any lay or medical evidence of a current disability or symptoms of a current disability.  Regarding the dental claim, as is discussed further below, no lay or medical evidence suggest the presence of a loss of substance of the body of the maxilla or mandible.  Finally, regarding the heart and hypertension claims, the evidence does not establish any inservice event. 

There is no indication in the record that additional evidence relevant to the issues decided herein is available and not part of the claims file.  See Pelegrini, 18 Vet. App. at 121-22.  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, 20 Vet. App. 537, 542-43 (2006), aff'd, Mayfield v. Nicholson, 499 F.3d 1317 (2007); see also Dingess/Hartman, 19 Vet. App. at 486.

Service connection laws and regulations

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  

Establishing service connection generally requires (1) medical evidence of 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 disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  In the absence of proof of a present disability there can be no valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). 

Certain specific conditions are considered chronic diseases, including arthritis, cardiovascular-renal disease, and hypertension.  38 C.F.R. § 3.309(a).  Where one of the above chronic diseases is shown to be chronic in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).

For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity.  38 C.F.R. § 3.303(b).

Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b).

Where a veteran served 90 days or more during a period of war or after December 31, 1946, and any of the chronic diseases listed above becomes manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

When all the evidence is assembled, VA is 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 a claim, in which case, the claim is denied.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

The Board notes initially that different types of military service are applicable to these claims.  The Veteran has a single period of active duty from November 1973 to September 1979.  The Veteran does not contend that any of the claimed disabilities are related to this period of service.  He contends that several of the claimed disabilities resulted from a motor vehicle accident incurred during an Army Reserve weekend drill in November 1999.  

While the Veteran has asserted - such as on the VA Form 9 - that the November 1999 accident occurred on "active duty," this is not supported by the service records pertinent to the incident.  The November 1999 Line of Duty report specifically indicates that the period of service was inactive duty training.  Moreover, a July 2000 Report of Investigation also classifies that duty period as inactive duty training.  

The Board acknowledges that the August 2001 Line of Duty report is unsigned and is not fully completed, including the designation of the type of duty; however, the Board notes that the Veteran sustained an unrelated injury during a similar 14-day period of annual training in July 1997.  The Line of Duty report for that injury classified the type of duty as active duty for training.  It is logical to assume that similar types of training would be classified in like manner.  The Veteran has submitted no documentation, such as a DD-214 indicating that he was on "active duty" in August 2001, and as his assertions were incorrect regarding the November 1999 period, the Board assigns no credibility to his assertions regarding the August 2001 period.  Additionally, the Veteran submitted several orders that indicate the periods are active duty for training. That period is, therefore, deemed to be active duty for training.  

While the differences between the various types of service may not seem significant, they are essential for determining entitlement to service connection.  While service on "active duty" is sufficient to meet the statutory definition of "veteran" to qualify for VA veterans' benefits, service on active duty for training or inactive duty training, without more, will not suffice to give one "veteran" status for these duty periods.  Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010).

In addition, the Board notes that no presumptions attach (including soundness, aggravation, or presumptive diseases) unless "veteran" status is attained.  Indeed, certain presumptions do not apply to periods of active duty for training and inactive duty training under any circumstances.    

For veterans who have achieved "veteran" status through a prior period of service and claim a disability incurred only during a later period of active duty for training or inactive duty training, the presumption of soundness applies only when the veteran has been "examined, accepted, and enrolled for service" and where that examination revealed no "defects, infirmities, or disorders."  Smith v. Shinseki, 24 Vet. App. 40, 45-46 (2010).  

Here, the Veteran was not examined prior to his period of inactive duty training in November 1999.  Thus, he is not presumed to have been in sound condition at the beginning of the duty period. Moreover, where a claim is based on a period of active duty for training or inactive duty training, the presumption of aggravation is not applicable, even if the claimant has achieved "veteran" status.  Smith v. Shinseki, 24 Vet. App. 40, 48 n.7 (2010).

Also significant as to certain of the Veteran's claims, one whose claim is based on a period of active duty for training or inactive duty training is not entitled to the service connection presumptions under 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  See Smith, 24 Vet. App. at 47 n.4.

Here, service connection has been established for a disability (rib fractures) incurred in the line of duty during the period of inactive duty training during which the November 1999 motor vehicle accident occurred.  Therefore, "veteran" status attaches to this period.  Nevertheless, because this period was inactive duty training and not active duty for training, service connection can only be granted for injuries (not diseases) incurred in the line of duty.  The definition of injury includes acute myocardial infarction, cardiac arrest, and cerebrovascular accident.

Hypertension and heart disorder claims

There is no assertion in this case that the Veteran experienced an acute myocardial infarction, cardiac arrest, or cerebrovascular accident during the November 1999 period of inactive duty training, or at any other time.  Thus, with respect to the claims of entitlement to service connection for a heart disorder and hypertension, which the Veteran asserts were sustained as a result of the November 1999 period of inactive duty training during which he was hospitalized following a motor vehicle accident, there can be no valid claim, as hypertension and heart disease are not injuries, but are diseases, which under VA law cannot be service connected based on inactive duty training.  

Although the Veteran had a later period of active duty for training in August 2001 during which it was noted on a clinical report that he would need to follow up for hypertension, the evidence establishes that hypertension was not actually incurred during this period.  Indeed, the Veteran reported the initial diagnosis of hypertension was in April 2002.  

While symptomatology of hypertension extended prior to the initial diagnosis, the evidence establishes that it did not have its origin during the August 2001 active duty for training.  In other words, he did not become disabled in the line of duty due to hypertension during this period.  

Indeed, an August 1998 Health Risk Profile, well prior to this period, notes that the Veteran had mildly high blood pressure at 144/84 and advised him to lower it.  The Veteran himself has not asserted that symptoms of hypertension began during the August 2001 active duty for training, as he reported on the VA Form 9 that his blood pressure readings were high during his 1999 hospitalization.  

The Veteran was apparently admitted to the hospital on November 18, 1999, then briefly discharged on November 21, 1999, only to be readmitted on November 23, 1999.  The hospital records show that his blood pressure at discharge on November 21st was 154/93.  

Readings for the second hospitalization are as follows:

Date
Systolic/
Diastolic
Date
Systolic/
Diastolic
Nov 23
145/
103
Nov 26
141/
92
Nov 23
162/
110
Nov 27
128/
78
Nov 24
143/
95
Nov 28
137/
90
Nov 24
139/
85
Nov 29
135/
85
Nov 25
155/
98
Nov 29
141/
92

For VA rating purposes, 'hypertension' means that diastolic blood pressure is predominately 90 mm. or greater.  Thus, the predominant blood pressure reading during the hospitalizations in November 1999 meets the definition for hypertension.  This evidence underscores the Board's finding that hypertension was not incurred in the line of duty during the August 2001 period of active duty for training, but that symptoms of hypertension predated this period.  This is not a medical determination and requires no medical expertise.  It is a simple application of VA regulations which specifically define hypertension for VA purposes.  

The Board emphasizes that it is not attempting to establish the date of onset of the disease hypertension.  The Board's finding is that hypertensive symptoms predated the period of inactive duty training, and that this weighs against a finding that the Veteran became disabled due to hypertension in the line of duty during a period of active duty for training.  

The Board also reiterates that there is no presumption of soundness for this period, as no entrance examination was performed.  There is also no presumption of aggravation.  The Veteran's blood pressure when examined in August 2001 was 142/88.  In fact, under VA regulations, this reading is not hypertensive as the diastolic pressure is below 90.  While an examiner noted hypertension on a treatment report during this period, he made no notation as to when hypertension was actually incurred, and the Board finds that the clinical evidence establishes a prior onset of hypertensive symptoms.  This evidence weighs decidedly against the incurrence of disabling hypertension in the line of duty during a period of active duty for training.

The Veteran does not contend that hypertension or heart disease are related to his period of active duty service, ending in 1979.  The report of medical examination at service separation in July 1979 contains normal clinical findings for the heart and vascular system.  His blood pressure was measured at 118/80.  The Veteran reported no history of high or low blood pressure, palpitations or pounding heart, or heart trouble.  This is probative evidence that neither hypertension nor heart disease were present during active duty service.  

The Veteran was provided a periodic examination in June 1998.  At that time, findings for the heart and vascular system were normal.  His blood pressure was 144/84.  He reported no history of high or low blood pressure and no history of heart trouble.  

The first evidence of elevated blood pressure comes from the November 1999 hospital records, although there was no actual diagnosis of hypertension at that time.  The Veteran does not assert that there was any notation of hypertension or heart disease in service or that there was continuity of symptomatology after service, and there is no other probative evidence of these factors.  The Veteran is currently diagnosed with chronic tachycardia and left ventricular hypertrophy; however, these diagnoses appear in 2007 and 2011, respectively.  

In addition, there is no competent opinion that purports to link current hypertension or heart disease to service.  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, establishing the etiology of heart disease and hypertension, falls outside the realm of common knowledge of a lay person as they are not readily observable by the senses.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting that personal knowledge is knowledge acquired through the senses - that which the veteran heard, felt, saw, smelled, or tasted).

Based on the above findings, the Board concludes that service connection for heart disease and hypertension is not warranted.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against each claim, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.

Concussion claim

The Board also finds that there are no concussion residuals of the November 1999 motor vehicle accident.  Indeed, the treatment records at the time of the accident do not mention a concussion, and they provide evidence against a finding that there was a concussion.  The Veteran was treated on November 18, 1999 just after the accident, and it was noted that the Veteran was not only alert and fully oriented, but could recall all details of the accident.  His injuries were recorded as fracture of multiple ribs, pneumothorax, a shoulder abrasion, and a lung contusion.  There was no mention of a concussion on either the initial hospital intake or discharge summaries, and there is no mention of concussion residuals on the subsequent hospital reports from the November 23, 1999 hospitalization.  Indeed, a CT scan of the head was conducted on November 19th, and it was read as unremarkable.  

The Board considers the hospital reports and the immediate post-accident examination as particularly significant regarding the nature and extent of the resulting injuries.  It is at this time that treatment providers are attempting to elicit symptomatology from the Veteran and determine all resulting injuries so that appropriate treatment can be provided.  This is a situation in which it is reasonable to expect that all present symptoms and abnormalities would be reported by the Veteran and noted by his treatment providers.  A concussion or loss of consciousness would be a significant finding, which a reasonable clinician would make note of.  The fact that there is no reference to a concussion on any of post-injury reports is highly significant and weighs decidedly against the assertion that there are current residuals of a concussion.  See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (noting that generally, an absence of evidence may not be considered substantive negative evidence); Kahana v. Shinseki, 24 Vet. App. 428 (2011) (Lance, J., concurring) (noting that the absence of evidence weighs against a claim "where the silence in regard to a condition can be taken as proof that a doctor did not observe the symptom" or if the fact would have normally been recorded.  Although the Veteran may be competent to describe symptoms of a concussion, he has not done so, other than to provide his bare assertion that one occurred.  

In addition to there being no persuasive evidence of a concussion, there is no evidence of any current concussion residuals.  The Veteran has not described any residuals, and the clinical records do not document any concussion residuals.  

The evidence in this case demonstrates no current disability regarding the claimed concussion residuals.  Where, as here, the evidence, including the Veteran's assertions, does not support a finding of a current disability upon which to predicate a grant of service connection, there can be no valid claim for service connection for concussion residuals.  See 38 U.S.C.A. § 1110; Gilpin, 155 F.3d 1353; Brammer, 3 Vet. App. at 225.  

Lumbar spine claim

Also claimed to be associated with the November 1999 motor vehicle accident are lumbar spine or low back residuals.  However, as with the claimed concussion residuals, the Veteran has provided no meaningful description of a back disability.  He has simply asserted that he has a back disability.  He has identified no treatment or diagnosis of a back disability, and the post-service treatment records do not reflect any clinical finding of a back disability or symptoms of a back disability.  STRs do reveal that the Veteran sustained a strain of the thoracic spine in June 1975; however, there is no subsequent notation of symptoms in the remaining 4 years of service, and the Veteran's entire spine was found to be clinically normal at service separation.  Notably, he reported no history of recurrent back pain on the report of medical history.  This is accorded great probative weight as it is consistent with the normal clinical findings, whereas his current assertion is not consistent with the normal clinical findings.    

It is a veteran's responsibility to present and support a claim for benefits.  See 38 C.F.R. § 5107(a) (West 2002).  Here, despite receiving a letter from the RO which specifically requested such information and evidence, the Veteran has provided no more than a bare assertion that he has a back disability without providing even the most rudimentary description of the disability or any back symptoms.  The Board acknowledges that the Veteran is competent to provide a description of his symptoms; however, he has not done so.  As there is no diagnosis of a back disability and no description of disabling back symptomatology, the Board finds that there is no current low back or lumbar spine disability and that service connection is therefore not warranted.  See 38 U.S.C.A. § 1110; Gilpin, 155 F.3d 1353; Brammer, 3 Vet. App. at 225.  


Dental claim

The Veteran has asserted that he incurred a dental injury during the period of inactive duty training in November 1999.  He asserts that his mouth struck the steering wheel of his vehicle during the motor vehicle accident.  

The Veteran's service dental records are not of record.  However, the hospital records include a November 24, 1999 notation that the Veteran complained of loose teeth and one tooth was bent to the gum area and was very loose.  

The Board assumes that the loose teeth were eventually extracted, although this fact is not determinative of the issue.  The Board notes that VA regulations distinguish between "replaceable missing teeth" or periodontal disease and teeth lost as a result of "loss of substance of body of maxilla or mandible."  Simington v. West, 11 Vet. App. 41 (1998); 38 C.F.R. § 3.381.  Replaceable missing teeth may be considered service connected solely for the purpose of determining entitlement to dental examinations or outpatient dental treatment, but only the loss of teeth involving the loss of substance of body of either the maxilla or mandible (as described in 38 C.F.R. § 3.381) is considered compensable, and may be rated under the appropriate diagnostic codes. 

Dental and Oral Conditions are rated under 38 C.F.R. § 4.150 (2013), Diagnostic Codes 9900-16.  Diagnostic Code 9913 applies to a dental service connection claim involving teeth.  Compensation is only paid for loss of teeth due to loss of substance of the body of maxilla or mandible without loss of continuity (as a result of trauma) or disease such as osteomyelitis, and not the loss of alveolar process (the ridge on the surfaces of the upper (maxilla) and lower (mandible) jaws containing the tooth sockets) as a result of periodontal disease, since such loss is not considered disabling.  See Note, 38 C.F.R. § 4.150, Diagnostic Code 9913.

Thus, to warrant compensation for a dental disability, the evidence must show that a trauma has caused a loss of substance of the body of the maxilla or mandible, resulting in a loss of teeth, or disease (such as osteomyelitis, but not periodontal disease) has caused a loss of substance of the body of the maxilla or mandible, resulting in a loss of teeth.  

The Federal Circuit defines "service trauma" as "an injury or wound produced by an external physical force during the service member's performance of military duties."  Nielson v. Shinseki, 607 F.3d. 802, 808 (Fed. Cir. 2010). 

The description of the injury provided in the November 1999 hospital records, although satisfying the definition of service trauma, does not suggest involvement of the substance of the body of the maxilla or mandible, but simply refers to loose and bent teeth.  Thus, even assuming that the affected teeth were eventually extracted, such injury does not constitute an injury for which compensation may be granted.  See 38 C.F.R. § 3.381 (replaceable missing teeth and periodontal disease are not disabilities for compensation purposes).  

Here, the facts are not at issue.  The Veteran does not contend, and the evidence does not suggest, that there has been a loss of substance of the body of the maxilla or mandible.  Accordingly, service connection for a dental disability for compensation purposes must be denied as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

ORDER

Service connection for concussion residuals is denied.

Service connection for a dental disability for compensation purposes is denied.

Service connection for hypertension is denied.

Service connection for a heart disability is denied.

Service connection for a lumbar spine disability is denied.


REMAND

Although the Board sincerely regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claims.  

First, regarding the cervical spine disorder, remand is required to obtain an adequate etiological opinion.  Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran contends that he injured his cervical spine in the November 1999 motor vehicle accident.  The November 18, 1999 discharge summary shows that the Veteran complained of some neck tenderness and that a full cervical spine series revealed no fractures, but questionable arthritis.  A VA medical opinion was requested regarding this claim, and the Veteran was afforded a VA examination in January 2013.  The VA examiner reviewed the claims file and noted that the Veteran was involved in a motor vehicle accident in the service and was seen for a cervical strain.  She also reviewed the x-ray findings.  The examiner diagnosed cervical degenerative disc disease and arthritis, which she found to be less likely than not related to service.  Her rationale was that there was no documentation of a chronic condition in service; she did not address the finding of questionable arthritis.  Accordingly, an addendum opinion indicating consideration of the statement of questionable arthritis should be obtained.  

Second, remand is required regarding the lung disorder claim to obtain an adequate etiological opinion.  Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran has asserted that service connection is warranted for a lung disability based on the November 1999 motor vehicle accident.  The Veteran was hospitalized following the November 1999 motor vehicle accident and that, as a result of the accident, he was treated for a left pulmonary contusion and pneumothorax.  A chest X-ray in August 2001 was read as normal regarding the lungs with no pneumothorax and no evidence of pulmonary disease.  

The Veteran was afforded a VA examination in January 2013.  The Veteran reported to the examiner that he was not having any problems with his lungs at that time; he was not taking any medication for the lungs; and there had been no treatment for the lungs since service.  He also reported, however, intermittent shortness of breath. X-rays showed that pulmonary vascularity was normal and the lungs were clear.  The diagnostic impression was no acute abnormalities and no impact on the ability to work.  The VA examiner found that it was less likely than not that any lung condition was related to service as there was no treatment since leaving service and the Veteran stated to her that he had not having any problems with the lungs since leaving service.  As noted above, one of the essential requirements for service connection is a current disability.  The Board finds that an addendum opinion is required to conclusively state whether there is a pulmonary or lung disorder, to include any residuals of the pneumothorax and addressing the Veteran's shortness of breath.

Fourth, remand is required regarding the right knee and bilateral ankle disorders to provide the Veteran with examinations.  VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability.  38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology).  

The Veteran asserts that he injured his right knee and bilateral ankles during annual training in 2001.  Service treatment records reveal that the Veteran was treated on August 24, 2001 during a 14 day period of active duty for training commencing August 12, 2001.  The Veteran complained of right knee swelling and bilateral ankle swelling for the prior two weeks.  There was no history of trauma.  The diagnosis was bilateral leg edema probably secondary to change in activity and heat with right knee effusion/djd.  An X-ray of the right knee taken at the time of the examination report revealed "[d]egenerative changes do not exist," however, the radiologist also opined that the joint effusion "may be secondary to traumatic vs infectious/inflammatory or degenerative osteoarthritis etiology."  This is competent evidence of an injury to the ankles and right knee manifested by joint effusion, as well as competent but inconclusive evidence that a diagnosis of traumatic arthritis may be associated with the injury.  The Veteran is competent to report current symptomatology, and it is his contention that he has arthritis affecting his right knee and bilateral ankles that is related to an injury during active duty training.  

Given the competent evidence of an active duty for training injury, the Veteran's report of current symptoms of the right knee and bilateral ankles, and the inconclusive August 2001 opinion regarding diagnosis and etiology, the Board finds that the low threshold established in McLendon has been met and a VA examination with medical nexus opinion is required to determine whether any or all of the claimed disabilities of the right knee and bilateral ankles is/are related to service.  

Accordingly, these issues are REMANDED for the following action:

1.  Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any right knee disorder and claimed right and left ankle disorders.  The relevant documents in the claims file should be made available to the VA examiner.

The examiner is directed to consider the service treatment record showing treatment on August 24, 2001 for complaint of right knee swelling and bilateral ankle swelling for the prior two weeks.  An X-ray of the right knee taken at the time of the examination report revealed "[d]egenerative changes do not exist," however, the radiologist also opined that the joint effusion "may be secondary to traumatic vs infectious/inflammatory or degenerative osteoarthritis etiology."  

The VA examiner is requested to provide all currently supported diagnoses regarding the right knee and bilateral ankles.  

The VA examiner is requested to offer an opinion as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that any diagnosed right knee disorder or any identified disorder of the ankles is causally or etiologically related to the period of active duty for training from August 12, 2001 to August 26, 2001.    

The examiner must address the Veteran's lay statements of record, including any statements made at the examination regarding his symptoms.

All opinions are to be accompanied by a rationale consistent with the evidence of record.  A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested.  

2. Obtain an addendum opinion regarding the etiology of the Veteran's cervical spine disorder from the January 2013 VA examiner.  If that examiner is unavailable, another examiner may provide the opinion.  If the examiner determines an examination is required, one must be provided.  The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review.  If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review.  The rationale for all opinions expressed must be provided.  If an opinion cannot be provided without resort to speculation, it must be noted in the opinion report, and a rationale provided for that conclusion.  The examiner must provide an opinion, in light of the 1999 findings whether it is at least as likely as not (50 percent or greater probability) that the Veteran's cervical spine disorder was caused or aggravated by military service. 

3. Obtain an addendum opinion regarding the etiology of any lung or pulmonary disorder from the January 2013 VA examiner.  If that examiner is unavailable, another examiner may provide the opinion.  If the examiner determines an examination is required, one must be provided.  The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review.  If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review.  The rationale for all opinions expressed must be provided.  If an opinion cannot be provided without resort to speculation, it must be noted in the opinion report, and a rationale provided for that conclusion.  The examiner must first provide an opinion, in light of the Veteran's lay statements regarding intermittent shortness of breath, there is any current lung or pulmonary disability, to include current residuals of an in-service pneumothorax.  If so, the examiner must provide an opinion whether it is at least as likely as not (50 percent or greater probability) that each diagnosed lung or pulmonary disorder was caused or aggravated by military service. 

4.  Readjudicate the remanded claims.  If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate time period for response.  The case should then be returned to the Board for further consideration, if otherwise in order.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  

These claims 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. 2011).




____________________________________________
K. MILLIKAN
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs