Citation Nr: 1334551 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 11-01 991 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for residuals of a neck injury. 2. Entitlement to service connection for a dental condition for purposes of compensation. 3. Entitlement to service connection for a dental condition for purposes of treatment. 4. Entitlement to service connection for status post lower thoracic spine compression deformities, claimed as low back condition. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran served on active duty from April 1965 to March 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Board additionally notes that the Veteran's electronic Virtual VA file has been reviewed in conjunction with the adjudication of the claims currently on appeal. The issues of entitlement to service connection for a dental condition for purposes of treatment and entitlement to service connection for status post lower thoracic spine compression deformities, claimed as low back condition are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. The Veteran did not manifest a neck condition in service or arthritis of the cervical spine to a compensable degree within one year after discharge from service, and it is not otherwise shown to be associated with service. 2. The Veteran had several extractions during service. He was also treated for caries involving a number of teeth. His medical/dental records do not show that he suffered any dental trauma in service. 3. The Veteran's dental condition is not manifested by impairment of the mandible (low jaw), loss of a portion of the ramus, and/or loss of a portion of the maxilla (upper jaw); nor are any lost teeth due to loss of substance of body of maxilla or mandible. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for residuals of a neck injury have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. The criteria for service-connected compensation for a dental disability are not met. 38 U.S.C.A. §§ 1101, 1110, 1712, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.381 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) With respect to the appellant's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 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 claimant 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); 38 C.F.R. § 3.159(b) (2012); 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 claimant of any information and 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. 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, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.56(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide. The notice requirements described above apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In August 2008, the agency of original jurisdiction (AOJ) provided the notice required by 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012). Specifically, the AOJ notified the Veteran of information and evidence necessary to substantiate the claims for service connection; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. This letter also provided the Veteran with the notice pursuant to Dingess. All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (2012) (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. VA also has a duty to assist the Veteran in the development of the claims which includes assisting the Veteran in the procurement of service treatment records and pertinent post-service treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Veteran argues that the in-service treatment records are incomplete. The Veteran specifically argues that the medical records reflecting treatment received while stationed in Germany are absent from the record. However, the Board notes that the August 2008 Request for Information indicates the RO requested complete medical and dental in-service treatment records. The Veteran's name, social security number, date of birth, service entrance and separation dates were provided to assist in the search of the requested records. In September 2008, the RO received a response that all requested records were mailed. Crucially, the service treatment records are comprised of pre-induction reports, induction reports, separation reports, records of in-service treatment for various complaints, dental records, and the immunization record. Thus, there is no suggestion that the records provided to VA are incomplete. The Board recognizes that the Veteran was not afforded a VA examination for his claimed conditions of residuals of a neck injury and a dental condition. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this 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 the Veteran's service. Regarding the issue of entitlement to service connection for a neck injury, in this case, the Board finds that the duty to provide an exam and medical opinion is not triggered. There is no credible evidence establishing that a neck injury occurred in service. The record also does not indicate that the Veteran's current neck disability has a causal connection with his active military service. Rather, the record only contains the Veteran's conclusory generalized statement that his neck disorder is related to service. As such, the low threshold of an "indication" that the neck disorder has an association with service has not been met. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (rejecting the theory that medical examinations are to be routinely and virtually automatically provided to all veterans in disability cases involving nexus issues). Regarding the issue of entitlement to service connection for a dental condition, the Veteran does not contend, and the record does not otherwise suggest that he sustained dental trauma during service. Thus, it is not necessary to obtain a medical exam and opinion. As discussed above, the Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process, identifying relevant treatment records, and submitting statements. Thus, he has been provided with a meaningful opportunity to participate in the claims process and has done so. The Board finds that VA's duty to assist has been met. II. Merits of the Claims Under the laws administered by VA, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d). Generally, the evidence 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. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). As an alternative to the nexus requirement, service connection for these chronic disabilities may be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303(b) (2012). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, the Board notes that arthritis is subject to service connection based upon continuity of symptomatology under 38 C.F.R. § 3.309(a). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154(a) (West 2002 and Supp. 2012). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Under 38 U.S.C.A. § 1154(a), 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, (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. Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). 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 evidence submitted by the Veteran or on her behalf. 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 claims. 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 appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Residuals of a neck injury The Veteran alleges that his current neck condition is related to an injury he sustained during his military service. The Veteran's in-service treatment records do not specifically document any complaints, treatment, or diagnosis of a neck condition. The Health Record-Abstract of Service shows the Veteran was seen in the dispensary at Tompkins Barracks in Schwetzingen, but does not detail what he was seen for. The Veteran's in-service treatment records do reflect that the Veteran complained of pain in the lumbosacral and dorsal spine in April 1967; however, there was no mention of any injury or symptoms in the neck at that time. The Veteran's January 1967 Report of Medical History at separation shows he complained of several problems but he did not report on a neck injury. The Report of Medical Examination at separation also indicated the Veteran's "head, face, neck, and scalp" and "spine, other musculoskeletal" were normal. These records did not report a prior history of a neck injury or treatment for such during service. The first medical evidence of neck pathology post-service was recorded in a May 2002 radiology report taken at a VA medical facility where the impression was degenerative disc changes and spondylarthritic changes of the cervical spine. In March 2008, the Veteran reported to Dr. J. L. S., a private physician, that he was feeling constant pain with grinding/grating sounds in the neck. He estimated the severity to be an 8 out of 10. The Veteran reported that these symptoms started when he was "going through rehab." There was no radiation into the head or neck. Dr. J. L. S. noted there was a moderate degree of discomfort found upon palpation of the Veteran's spinal tissue at C2. An examination of muscle tenderness and spasm revealed moderate tenderness on the posterior cervical area, moderate spasms, and the C2 had a left malalignment. Treatment records of Dr. J. L. S. dated throughout April 2008 indicate the Veteran continued to report pain and grinding/grading sounds in his neck. Comments on the etiology of the Veteran's neck condition were not provided in these records. According to a January 2010 VA treatment record, the Veteran's report of neck and upper back pain was noted. The mild degenerative changes revealed in the x-rays of the cervical spine and thoracic spine was also noted. However, no etiological opinion was provided. The preponderance of the above evidence demonstrates that the Veteran is not entitled to service connection for a neck injury. A review of the Veteran's service treatment records reflects no history of a neck injury. Also, according to the Veteran's January 1976 separation examination, the neck was deemed to be normal. The record contains no medical evidence of treatment for a neck injury within one year following separation from active duty. In fact, the first medical evidence of neck pathology was the May 2002 x-ray of the cervical spine; approximately 25 years after separation from active duty. Thereafter, actual complaints of neck pain are not documented until 2008. VA treatment records dated in 2006 show the Veteran's active problems do not include neck pain. It is in March 2008 that the Veteran is noted to have gone through rehab and that he was experiencing constant neck pain. When considering whether or not to grant a claim for service connection, the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In the present case, the lack of any medical evidence of a previously neck injury for over two decades following separation from active duty tends to suggest that the Veteran does not suffer from a chronic disability of the neck related to military service. In regard to the lay evidence of record, the Board recognizes that the Veteran has reported a history of a neck injury during service for which he received treatment, and the Veteran's wife has reported that she witnessed the neck injury and recalls that the Veteran received treatment during service. Unfortunately, the Board cannot find the Veteran and his wife's current contentions reliable. The Veteran and his wife's current contentions are inconsistent with statements the Veteran made contemporaneous to service. The separation Report of Medical History shows the Veteran despite reporting on several problems, including experiencing heart burn after eating spicy foods and cramps in the legs after exercising, did not report on a neck injury that he now contends was so significant that he required treatment in service and continued to require treatment after service. The Report of Medical History was certified as true and signed by the Veteran. The evidence contemporaneous to the Veteran's service is just not consistent with the Veteran's current contentions. For these reasons, the Board does not find that there is credible evidence of an in-service neck injury. It follows that there can be no credible finding of a continuity of symptomatology after service notwithstanding the Veteran's recent claim that he took care of the injury post service "with over the counter drugs" and chiropractic care in 1987 and some in the 1990s. In the absence of credible evidence that shows in-service incurrence of the injury, and credible evidence of a causal relationship between the present neck disability and an injury incurred during service, service connection for residuals of neck injury is not warranted. As the preponderance of the evidence, as outlined above, is against the claim, the benefit of the doubt doctrine is not applicable and the appeal must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Dental condition for purposes of compensation The Veteran, in this case, is claiming his teeth were extracted during his military service. In a March 2010 statement, he indicated it was unclear who made the decision to have his teeth removed during service but that given the possibility of deployment to Vietnam, the Veteran was told "they [d]id not [want] me i[n] [Vietnam] [a]nd h[a]ve [a] [toothache]." The Veteran has not contended that any of the teeth were removed as the result of trauma or injury incurred during service. The Veteran's April 1965 dental examination at entrance indicates that teeth numbers 2, 3, 7, 13, 14, 15, 18, 19, 20, and 32 were missing. In addition, extensive caries were also present at that time. The Veteran's in-service dental records further report that teeth numbers 10, 29, and 30 were extracted in April 1965; teeth numbers 27, 28, and 31 were extracted in September 1965; teeth numbers 2, 4, and 5 were extracted in October 1965; tooth number 16 was extracted in November 1965; tooth number 17 was extracted in December 1965; teeth numbers 21, 22, 23, 24, 25, and 26 were extracted in January 1966; and teeth numbers 8, 9, 11, and 12 were extracted in February 1966. The Veteran's January 1967 Report of Medical Examination at separation clearly indicates that he did not have any remaining teeth. There was also no indication his teeth were removed as a result of trauma. 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 stated 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. Instead, the Veteran merely notes that his teeth were removed during service under the possibility of deployment to Vietnam. 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 compensation. 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, 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 does not provide any reasons that his dental problems were 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. The Veteran does not have a dental disability that can be service-connected for compensation purposes. As the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for residuals of a neck injury is denied. Entitlement to service connection for a dental condition for purposes of compensation is denied. REMAND Dental Treatment Claim In July 2008, the Veteran submitted a claim for entitlement to service connection for a dental condition but did not specify whether it was for purposes of compensation, treatment, or both. In the March 2010 Notice of Disagreement and in statements dated thereafter, it is clear that his claim was not for compensation but for coverage of his dental treatment. With respect to the Veteran's claimed dental condition, under the holding in Mays v. Brown, 5 Vet. App. 302, 306 (1993), a claim for service connection for a dental condition is also considered a claim for VA outpatient dental treatment for that condition. Accordingly, the AMC/RO should undertake appropriate measures to see that the Veteran's claim for dental treatment is considered and adjudicated. Back Claim In an August 2010 rating decision, the RO denied service connection for status post lower thoracic spine compression deformities, claimed as low back condition. In a November 2010 statement, the Veteran referenced his back. In VA Form 9 received in January 2011, the Veteran again referenced his back, basically expressing that he did not understand why VA was not acknowledging a service connected back condition, and he complained of the adequacy of the VA examination he underwent in connection with his claim. The Board finds that the VA Form 9 should have been construed as a notice of disagreement with the denial of service connection for a back disorder in the August 2010 rating decision. As such, the Veteran has filed a timely notice of disagreement and the issue is in appellate status. See 38 C.F.R. §§ 20.201, 20.302 (2013). The Court has held that where a notice of disagreement has been filed with regard to an issue, and a statement of the case has not been issued, the appropriate Board action is to remand the issue for the issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Thus, this claim is being remanded for issuance of a statement of the case and to give the Veteran the opportunity to complete an appeal. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 19.26, 19.29 (2013). After the RO has issued the statement of the case, the claim should be returned to the Board only if the Veteran perfects the appeal in a timely manner. Accordingly, the case is remanded for the following action: 1. The AMC/RO should undertake appropriate measures to see that the Veteran's claim for VA outpatient dental treatment is considered and adjudicated. 2. Issue a statement of the case to the Veteran and his representative on the issue of entitlement to service connection for status post lower thoracic spine compression deformities, claimed as low back condition so that the Veteran may have the opportunity to complete an appeal on this issue (if he so desires) by filing a timely substantive appeal. The issue should only be returned to the Board if the Veteran files a timely substantive appeal. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs