Citation Nr: 1337643 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 09-06 420 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for loss of teeth, to include as due to herbicide exposure and asbestos exposure. 3. Entitlement to service connection for spondylolisthesis, to include as due to asbestos exposure. 4. Entitlement to service connection for cardiac hypertension, to include as due to asbestos exposure. 5. Entitlement to service connection for a stomach/intestinal disability, to include as due to asbestos exposure. 6. Entitlement to service connection for brain damage, to include as due to asbestos exposure. 7. Entitlement to service connection for chronic heart condition with open heart surgery and stent placements, to include as due to asbestos exposure. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from August 1971 to November 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office in Waco, Texas (RO), which denied the Veteran's claims. In addition to the paper claims files, the Veteran also has an electronic claims file in Virtual VA and VBMS. The Board has reviewed both the paper and electronic claims files in rendering this decision. As indicated above, the Veteran has filed a claim for a dental condition. 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 November 2006 rating decision merely denied the Veteran's dental claim for VA compensation purposes. In other words, the RO never developed or adjudicated any request for dental treatment regarding this claim. Accordingly, the Board has limited its decision and review of the Veteran's dental condition as a claim for entitlement for VA compensation purposes and will refer whether he is entitled to dental treatment for the claimed dental condition. The issues of entitlement to compensation under 38 U.S.C.A. § 1151 (due to VA pain medications caused abdominal/intestinal problems, ineffective hypertension treatment at VA, etc) and entitlement to service connection for a dental condition for dental treatment purposes have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issue of entitlement to service connection for brain damage is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Clear and unmistakable evidence shows that the Veteran's bilateral hearing loss preexisted service and clear and unmistakable evidence shows that bilateral hearing loss was not aggravated by service. 2. The Veteran does not have a current dental disorder involving loss of substance of body of maxilla or mandible, or of the soft tissue surrounding that region and he does not have a dental disorder resulting from any in-service dental trauma. 3. The Veteran's spondylolisthesis was not first manifest in service, and the disability has not otherwise been shown to be etiologically related to service or in-service exposure to asbestos. 4. The Veteran's cardiac hypertension was not first manifest in service or within the first post-service year, and the disability has not otherwise been shown to be etiologically related to service or in-service exposure to asbestos. 5. The Veteran's stomach/intestinal disability was not first manifest in service, and the disability has not otherwise been shown to be etiologically related to service or in-service exposure to asbestos. 6. The Veteran's heart disability was not first manifest in service or within the first post-service year, and the disability has not otherwise been shown to be etiologically related to service or in-service exposure to asbestos. CONCLUSIONS OF LAW 1. The Veteran's pre-existing bilateral hearing loss disability was not aggravated by active service. 38 U.S.C.A. §§ 1110, 1111, 1153, 5107; 38 C.F.R. §§ 3.303, 3.385 (2013). 2. The criteria for the establishment of service connection to a dental condition, for VA compensation purposes, have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.381, 17.161 (2013). 3. A back disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). 4. Hypertension was not incurred in or aggravated by active service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1111, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 5. A stomach/intestinal disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). 6. A heart disability was not incurred in or aggravated by active service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1111, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 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, all the 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 claims, the VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and 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). 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 or her 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 June 2006 and September 2006 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2013); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The letters 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 state 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 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 (STRs) and VA medical records are in the file. Records from the Social Security Administration (SSA) also have been associated with the claims file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time otherwise referenced outstanding records that he wanted VA to obtain or that he felt was relevant to the claims. 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. 38 C.F.R. § 3.159(c)(4)(i) (2013). In this case, the Veteran was provided VA examinations in December 2012 and April 2013, with addendum opinions dated in September 2013. The examiners considered the Veteran's complaints, as well as the service treatment records, post-service treatment records, and conducting physical examinations. Based on the foregoing, the examiners concluded that the Veteran's claimed service connection conditions were not due to or aggravated by an event, disease, or injury incurred during active service. Therefore, as the opinions were based on review of the claims file, including the Veteran's statements, and provided an extensive rationale for the opinions provided, the Board concludes that the opinions provided are adequate. Given the foregoing, the Board finds the evidence of record to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim for service connection. 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). As such, the Board finds that the medical evidence of record is sufficient to adjudicate the Veteran's claim. Given the December 2012 and April 2013 VA examinations and reports, the September 2013 addendum opinions, and the subsequent readjudication of the claim, the Board finds that there has been substantial compliance with its October 2012 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 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). Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In the absence of presumptive service connection, 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). Moreover, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002). In order to rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder preexisted service and there must be clear and unmistakable evidence that the disorder was not aggravated by service. The Veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGPREC 3-2003 (July 16, 2003); Jordan v. Principi, 17 Vet. App. 261 (2003); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). However, where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that "[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a) (2013). For Veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306(b). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Given these provisions, the standard of proving a claim based on "aggravation" changes depending on whether the pre-existing disability was noted on the entrance examination report, or whether it was not but the presumption of soundness is nevertheless rebutted. With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In certain circumstances lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, supra. The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). Factual Background and Analysis I. Hearing Loss The Veteran contends that his bilateral hearing loss was either caused or aggravated by his in-service noise exposure aboard the USS Tulare. With respect to claims for service connection for hearing loss, the United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court further opined that 38 C.F.R. § 3.385, discussed below, then operates to establish when a hearing loss disability can be service connected. Id at 159. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Pure tone thresholds, in decibels, were as follows for the June 1971 entrance audiological examination: HERTZ 500 1000 2000 3000 4000 RIGHT 20 5 35 30 10 LEFT 25 10 5 30 15 Pure tone thresholds, in decibels, were as follows for an audiological evaluation dated August 1971: HERTZ 500 1000 2000 3000 4000 RIGHT 20 5 35 30 10 LEFT 25 10 5 30 15 A whispered voice hearing evaluation conducted in conjunction with the Veteran's separation examination dated November 1972 was 15/15 in each ear. The Veteran did not report nor was there any notation made by the examiner that the Veteran had any hearing loss disability at discharge. A VA treatment record dated October 1988 documented the Veteran's complaints of an ear ache. The May 1989 VA examination report indicated no evidence of hearing loss. During a May 1989 VA examination, the Veteran reported ringing in the ears, dizziness, and headaches-among other things. Examination of the ears showed normal auditory canals, tympanic membranes, and light reflex. There were no scars, perforations, or drainage seen. The examiner specifically indicated that there was no hearing loss. Following service, the Veteran was first shown to have bilateral hearing loss disability pursuant to 38 C.F.R. § 3.385 during his December 2012 audiological examination. The December 2012 VA examiner was unable to provide an opinion because she was not provided the Veteran's claims file in conjunction with the examination. At the time of the examination, the Veteran reported a gradual decrease in hearing since 1970 and during service he was exposed to noise from turbine engines without hearing protection. After service, the Veteran worked in construction from 1972 to the mid-1980s, and he did not wear hearing protection. Recreational noise exposure included chainsaw noise without the use of hearing protection. In September 2013, an addendum opinion was provided by another VA physician following review of the claims files, including the December 2012 VA examination reports and STRs. The examiner opined that the Veteran's bilateral hearing loss disability clearly and unmistakably preexisted service, but was clearly and unmistakably no aggravated beyond its natural progression due to an in-service injury, event, or illness. In reaching this conclusion, the examiner noted that the Veteran's whispered voice testing was shown to be normal at service separation, and there were no other audiological evaluations performed during service that would have shown his bilateral hearing loss was aggravated beyond its normal progression. Moreover, the examiner noted that the Veteran entered service with significant bilateral hearing loss. Initially, the Board notes that the Veteran's enlistment medical examination showed some loss of hearing acuity, but it did not show a bilateral hearing loss disability for VA purposes (under 38 C.F.R. § 3.385). As such, the Veteran will be presumed to have entered service in sound condition with respect to any bilateral hearing loss disability. 38 U.S.C.A. §§ 1111 (West 2002); see also Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). As noted, however, the presumption can be rebutted by clear and unmistakable evidence. In this case, the evidence clearly shows that the Veteran's bilateral hearing loss preexisted his military service. As noted above, the September 2013 VA examiner considered the contemporaneous evidence of record, including the post-service clinical records, and concluded there was clear and unmistakable evidence that the Veteran's decreased hearing acuity preexisted his military service and was not aggravated thereby. That conclusion is supported by the medical evidence of record. Moreover, the examiner provided a detailed rationale indicating that the Veteran had significant hearing loss noted at enlistment, no treatment for hearing complaints during service, and normal whispered voice testing since service. The Board finds that this examination report is the most probative evidence regarding the question of pre-existence of bilateral hearing loss and whether such was aggravated during service. There is no indication that the examiner was not fully aware of the Veteran's past medical history or that she misstated any relevant fact. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.); Neives- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In light of the above, the Board finds that the Veteran's bilateral hearing loss clearly and unmistakably preexisted his military service, and it was not clearly and unmistakably aggravated beyond its natural progression during service. Although the Veteran did not have a hearing loss disability for VA purposes at the time of enlistment, he clearly had significant hearing loss. Additionally, the competent and credible evidence of record shows that the Veteran's bilateral hearing loss was clearly and unmistakably not aggravated during his military service. As the bilateral hearing loss underwent no increase in severity during service, aggravation may not be conceded. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). The grant of service connection requires competent evidence to establish a diagnosis and, as in this case, relate the diagnosis to the Veteran's service. Although the record demonstrates a current diagnosis of bilateral hearing loss, it does not contain reliable evidence of aggravation of the pre-existing hearing loss in service. Furthermore, even if the Veteran were sound upon entry into active duty, the evidence does not show in-service onset of a hearing loss disability for VA purposes. The 2013 VA examiner did not link the Veteran's current disability to service to include in-service noise exposure. Furthermore, the Board has also considered the Veteran's statements concerning the etiology of this claimed disability, and the lay statements. The Veteran is certainly competent to report the onset of symptoms and the circumstances surrounding such. However, although the Board recognizes that the Veteran is sincere in his belief that his current hearing problems are related to his time in service, he is not otherwise competent to state whether his hearing loss is related to service. See 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). To the extent that the Veteran reports that he had symptoms of hearing loss during service and that he experienced worsening symptoms in the years following service, the Board the Veteran is competent to report that he experienced such symptoms. Jandreau. However, competence and credibility are separate matters which must be addressed. Although the Veteran currently reports a history of hearing loss dating to service, there are no competent clinical opinions linking his bilateral hearing loss to service, and in fact, the only competent evidence of record (the September 2013 opinion) finds no link. The service treatment records are evidence against the claim. Notably, the Veteran has neither identified nor submitted any evidence which shows worsening of his bilateral hearing loss during service. Any assertion that the Veteran "noted" worsening of his bilateral hearing loss during service is not credible. See Savage v. Gober, 10 Vet. App. 488 (1997); McCormick v. Gober, 14 Vet. App 39 (2000). As noted by the Federal Circuit in Buchanan, the Board has considered the lay statements. However, the objective record with against the claim, and there is an absence of contemporaneous medical evidence which weighs against the Veteran's assertion of continuity. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for bilateral hearing loss disability, and the benefit of the doubt rule does not apply. See generally 38 U.S.C.A. § 5107(b). II. Dental The Veteran seeks service connection for the loss of teeth, to include as due to asbestos and/or Agent Orange exposure. Under current legal authority, compensation is only available for certain types of dental and oral conditions, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla. See 38 C.F.R. § 4.150 (2013). Compensation is available for loss of teeth if such is due to loss of substance of body of maxilla or mandible, but only if such bone loss is due to trauma or osteomyelitis, and not to the loss of the alveolar process as a result of periodontal disease, as such loss is not considered disabling. Id. at Note. 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 and cannot be considered for compensation purposes. 38 U.S.C.A. § 1712; 38 C.F.R. §§ 3.381, 4.150. Considering the pertinent evidence in light of the governing legal authority, the Board finds that service connection for loss of teeth for compensation purposes, is not warranted. As noted, replaceable missing teeth are not considered disabling for VA disability compensation purposes. See 38 C.F.R. § 3.381(a); see also 38 C.F.R. § 4.150. Further, there is no evidence that the Veteran has tooth loss due to loss of body of the maxilla or mandible caused by in-service trauma or osteomyelitis. A review of the Veteran's service treatment records (STRs) shows that upon enlistment, his teeth were Type II, Class 2, and he qualified for pending treatment of his dental defects/diseases. In his own report of Medical History he noted a history of severe tooth trouble. The examiner noted that the Veteran had a history of a fractured tooth in the past, and teeth numbered 1, 3, and 14 were all listed as "restorable." During service, the Veteran was not treated for any type of trauma to the jaw, mouth, or teeth, nor is there evidence that he served in a combat situation. Teeth numbered 1, 2, and 14 were restored in September 1971. The assessment of dental defects and diseases noted at service discharge examination in November 1972 reveals that the Veteran was Type III, Class I regarding his teeth. During a May 1989 VA examination, the examiner noted that the Veteran had several dental fillings but no other abnormalities of the mouth. He did not report any injury to the mouth or jaw during service. In a 1995 treatment record, the Veteran reported pain after having 8 teeth pulled. The Veteran was afforded a VA dental examination in April 2013 during which he reported that his teeth were broken while he was in prison and has had no problems since then. Previously, when he was admitted to the hospital with heart problems, he was found to have periodontal disease. The examiner found no evidence of any injury or condition to the mandible (not due to edentulous atrophy or periodontal disease), maxilla, mouth, or jaw. He found no evidence of anatomical loss or bony injury leading to the loss of teeth other than due to the loss of the alveolar process due to periodontal disease. In a September 2013 addendum a VA physician provided a negative nexus opinion between the Veteran's claimed lost teeth and his military service. The examiner noted that upon enlistment the Veteran had Class 2 dental defects, which signified minor dental care, and at discharge, he was Class 1, which signifies no dental care is needed. The physician indicated that the Veteran's STRs show no evidence of significant periodontal disease or missing teeth while on active duty. As the Veteran essentially seeks service connection for replaceable missing teeth, and replaceable missing teeth can only be considered service connected for the purpose of establishing eligibility for outpatient dental treatment-and not for compensation purposes-the claim for service connection, for compensation purposes, must be denied. Where, as here, the law and not the evidence is dispositive, the claim must be terminated or denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). III. Back, Hypertension, Stomach/Intestinal, Heart A review of the Veteran's STRs shows no complaints or treatment related to any back, gastrointestinal, or heart/hypertension problems. Enlistment physical examination in August 1971 was normal for all these body systems. Blood pressure was 120/80. Chest x-ray was essentially negative. In his own report of medical history, the Veteran did not report any problems in these areas. At discharge physical examination in November 1972, the Veteran was not found to have any disability or complaints related to his back, stomach/intestines, or heart. Treatment records show that the Veteran was first treated for high blood pressure in early-1988. During a May 1988 VA hospitalization, the Veteran was noted to have a history of hypertension, controlled only by diet, dizziness, fatigability, and low back pain. Chest x-ray was normal, and x-ray of the lumbosacral spine showed bilateral spondylolisthesis of L5-S1. He did not report any in-service incidents that would have precipitated these symptoms. In an October 1988 VA hospitalization, the Veteran was admitted for treatment for dizziness, earache, and alcohol abuse. He reported history of dizziness "for year" and admitted to several falls in the past while at work. He denied any history of a seizure disorder, but endorsed some earache and ringing in his ears. Noted was a previous hospitalization in May 1988 for symptoms of hypertension. Blood work was within normal limits, except for elevated triglycerides, and EKG was within normal limits. There were no significant cardiac arrhythmias appreciated. CT scan of the brain was unremarkable and EEG was within normal limits. The Veteran was afforded a VA examination in May 1989, during which he reported (among other things) dizziness, low back pain, and headaches. Examination of the cardiovascular system revealed a regular rate and rhythm without murmurs, rubs, or gallops. The heart sounds and peripheral pulses were both normal. Blood pressure readings were 135/95 and 140/95. At the time of the examination, the Veteran reported a diagnosis of high blood pressure in February 1988. He also described a history of low back pain for the past four or five years. He recalled several falls/injuries to the low back in the past 10 years, but never sought medical treatment. He reported dizziness for the past 10 years, but did not indicate the reason for its onset. The Veteran did not describe any in-service incidents related to his stomach/intestines, back, or heart, and indicated that he has had no other serious illnesses. The Veteran indicated that he believes he experiences some indigestion from taking over-the-counter pain medications. X-ray of the chest and lumbar spine were within normal limits. At that time, the Veteran was diagnosed as having essential hypertension, well controlled on medication, positional vertigo, and recurrent low back strain. In a July 1989 private evaluation, the Veteran reported that he was in good health 12 years ago, and in August 1975 while working on a roofing project, he injured his back. He stated that he stepped off a ladder with an armload of shingles and twisted his back. He has had problems with back pain since. He did not report any in-service injury to the back. The Veteran was afforded a hearing before a Decision Review Officer in January 1990 to discuss his disabilities for pension purposes. At no point during the hearing did the Veteran report any in-service back, heart, or stomach/intestine problems or any symptoms since service related to these body systems. There is also evidence of a motor vehicle accident in 1994, following which the Veteran reported pain in the back, neck, and shoulders. In the 1990s, the Veteran was treated for colon polyps, and he had some gastrointestinal complaints. No treating professional associated any of these symptoms/complaints with an in-service incurrence. He was treated for gunshot wound to the thoracoabdominal area in September 1997. Later treatment records show treatment for abdominal problems following a gunshot wound to the stomach, a diagnosis of coronary artery disease, continued treatment for hypertension, mild degenerative disc disease, spondylolisthesis and osteoarthritis of the lumbar spine. He underwent a cardiac catheterization in June 1999. In conjunction with his service connection claim filed in May 2006, the Veteran has contended that many of his symptoms were caused by a gunshot to the abdominal area. This gunshot occurred in 1997, and the Veteran maintains it has caused extensive damage to his stomach/intestines, abdominal cavity, and caused brain damage from lack of oxygen and blood. He states he has a long term history of hospitalizations for heart problems, low back problems, and stomach problems from the pain killers. He described subsequent cardiac treatment and physical limitations, but did not report any onset of these disabilities during military service or related to an event, injury, or disease incurred during military service. In his claim, he reported the onset of his low back disability and cardiac hypertension was from birth. His stomach/intestinal problems and brain damage had their onset in 2006. His hearing loss had its onset in 1972 and his heart problem in 1999. Treatment records show a history of treatment for gastroesophageal reflux disease (GERD). The Veteran first indicated that his disabilities may be related to his military service following his claims for service connection. Namely, in an August 2006 statement, he reported that some of his disabilities may have been caused by exposure to chemicals and pollutants, such as asbestos, lubricating oils, and lead-based paints. The Veteran was afforded a VA spine examination in December 2012 during which he reported he was a machinist during service and was told that he had an abnormal curvature of the spine. He recalled being treated in service with ice packs, and contends he has had intermittent back pain since service. The examiner diagnosed mechanical back pain and opined that it is less likely than not that the Veteran's spondylolisthesis/back disability is related to events in military service. In reaching this conclusion, the examiner noted that the Veteran did not report any back problems until 1986. The examiner found that there is no clinical relationship between any back disability and asbestos exposure, and found no clinical relationship between any stomach/intestinal disability and asbestos exposure. This examiner did not review the Veteran's claims file prior to reaching these conclusions. The Veteran was also afforded a VA heart examination in December 2012. Again, the examiner was not provided the Veteran's claims file for review. He noted the Veteran's history of heart problems with their onset in 1983 when he was treated for hypertension. He underwent stenting and coronary artery bypass surgery in 1999. The Veteran denied being treated for hypertension or heart problems during service. The examiner provided a negative nexus as to the Veteran's hypertension and heart disability and their relationships to service. The examiner also noted no medical correlation between asbestos exposure and heart disease or hypertension. In September 2013, the Veteran's claims file was sent for review by a VA physician to provide addendum opinions to the December 2012 VA examinations. As noted above, the Veteran's claims file was not present at his VA examinations of the spine, stomach, and heart. Following review of the Veteran's claims file and the previous VA examination reports, the September 2013 examiner provided clarified opinions with respect to the Veteran's claim heart disability, hypertension, spine disability, and stomach/intestinal disability. With regard to the spine, the September 2013 examiner opined that the Veteran's spondylolisthesis is less likely than not related to incidents in military service. He agreed with the December 2012 VA examiner's opinion that there was no relationship between the Veteran's current back disability and his military service and there is no clinical relationship between asbestos exposure and a back condition. In reaching this conclusion, the September 2013 examiner noted that enlistment physical examination was normal for the spine/musculoskeletal problems. He was not treated for any back disabilities during military service, and upon discharge in 1972, there were no back or musculoskeletal disabilities found. The examiner cited some medical treatise evidence regarding the incidence of spondylolisthesis in athletes who participate in high risk activities have this sort of acquired spondylolisthesis, otherwise, spondylolisthesis is genetically predisposed. Finally, the examiner indicated that asbestos exposure is not shown by medical literature to cause or aggravate to spondylolisthesis. Regarding the Veteran's hypertension and heart problems, the examiner diagnosed hypertension and ischemic heart disease. He opined that the Veteran's hypertension and heart disability were both less likely than not related to military service. In reaching this conclusion, the examiner noted the complete lack of treatment for heart problems (chest pain, palpations/pounding of the heart) or high blood pressure during service, and discharge physical examination showed normal heart and hypertension examinations. Finally, the examiner opined that there is no scientifically based medical literature showing causation or aggravation of heart disease and hypertension by asbestos exposure. The examiner also provided a negative opinion with respect to the Veteran's stomach/intestinal disability. The examiner diagnosed the Veteran as having GERD. In reaching this conclusion, the examiner noted that the Veteran had wholly normal clinical evaluations of the stomach, intestines, liver during service and he was never treated for complaints of stomach/intestinal problems during service. Moreover, he found that there is no scientifically based medical literature showing the causation or aggravation of a gastrointestinal disability (GERD) due to asbestos exposure. Initially, the Board notes that the Veteran has a current diagnosis of hypertension, ischemic heart disease, GERD, and spondylolisthesis. Therefore, the crucial inquiry is whether these disabilities were caused by or otherwise related to his military service, to include as due to asbestos exposure. The Board concludes that the preponderance of the evidence indicates they are not. Most importantly, the September 2013 VA examiner's report includes thorough opinions finding no link between the Veteran's current hypertension, heart disability, stomach/intestinal disability, and spine disability and his military service. Additionally, in the September 2013 report, the examiner opined that these disabilities were not caused or aggravated by exposure to asbestos. The VA examiner, in both opinions, provided a detailed rationale and is consistent with the evidence of record. He indicated that the Veteran did not have a stomach/intestinal disability, spine disability, high blood pressure readings, or any heart disability in service, and there are no records showing a spine disability, heart disability or hypertension diagnosis was made within the first post-service year. Additionally, according to medical literature, asbestos is not known to cause or aggravate hypertension, ischemic heart disease, spondylolisthesis, or a stomach/intestinal disability. Given this rationale and the fact that the both the Veteran's claims file and the reported relevant and accurate history were considered by the examiner, the Board finds the September 2013 opinions to be of very high probative value. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (noting that the Board may favor the opinion of a competent medical professional so long as an adequate statement of reasons and bases is provided). Thus, there is no credible or competent evidence of the onset of hypertension, ischemic heart disease, spondylolisthesis, or as stomach/intestinal disability in service. Even assuming that the Veteran was exposed to asbestos while in service, there is no competent or credible evidence showing a link between asbestos exposure his claimed hypertension, and disabilities of the heart, spine, and stomach/intestines. The Board appreciates the assertions made by the Veteran that his current hypertension, heart disability, spine disability and stomach/intestinal disability first started while in service and have continued since, or alternatively, that they were caused or aggravated by exposure to asbestos. The Board finds, however, that the Veteran is not competent to say that his hypertension was caused or aggravated by the nerves and headaches he experienced in service, nor is he competent to say that his hypertension, heart disability, spine disability and stomach/intestinal disability were caused or aggravated by asbestos exposure. Although back pain, nervousness and headaches are matters that can be observed and described by a lay person, a diagnosis of hypertension, ischemic heart disease, GERD, and spondylolisthesis is not. Moreover, some of his symptoms can be observed and described by a lay person, but diagnosing it as secondary to a service-connected exposure to asbestos is beyond the competency of a lay person. Finally, he lacks the specialized knowledge to connect a current diagnosis of hypertension, heart disability, spine disability and stomach/intestinal disability to his service. The former represents an observed cause and effect relationship, while the latter relies upon medical knowledge. Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In other words, a man is aware he is limping, but may not be able to identify the actual reason why. The Veteran is considered competent to report that he was treated for hypertension, heart disability, spine disability and stomach/intestinal disability soon after discharge from service, and since. The Board finds, however, that the Veteran's statements regarding onset of hypertension, heart disability, spine disability and stomach/intestinal disability and continuity since service are not credible. The contemporaneous records show no actual or sufficient diagnosis of high blood pressure or hypertension, heart problems, back problems, or gastrointestinal problems during service. Further, records reflect no reports of ongoing treatment for hypertension, heart disability, spine disability and stomach/intestinal disability since service. The only clinical evidence of record including diagnoses hypertension, heart disability, spine disability and stomach/intestinal disability are dated many years following service and no medical professional has attributed the Veteran's hypertension, heart disability, spine disability and stomach/intestinal disability to his military service. The Board further notes that in the course of both VA and private treatment for various disabilities, including motor vehicle accidents and gunshot wounds, he has not contended that his hypertension, heart disability, spine disability and stomach/intestinal disability had their onset during service and have continued since. With that being said, there is no competent or credible evidence finding a link between the Veteran's currently diagnosed hypertension, ischemic heart disease, GERD, and spondylolisthesis and an event, injury, or disease incurred during service, or due to asbestos exposure. Again, September 2013 examiner provided very detailed opinions after extensive review of the Veteran's claims file, and review of the December 2012 interviews and physical examination of the Veteran. Thus, this examiner's opinions are given more probative value than the lay evidence presented by the Veteran that has been found to lack either competence or credibility. Overall, the Board finds that the preponderance of the evidence is strongly against the conclusion that the Veteran's claimed hypertension, heart disability, spine disability and stomach/intestinal disability are in any way etiologically related to service or a service-connected disability. Accordingly, the claim for service connection for this must be denied. VA's benefit-of-the-doubt doctrine is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. 38 U.S.C.A. § 5107(b). ORDER Service connection for bilateral hearing loss is denied. Service connection for loss of teeth is denied. Service connection for spondylolisthesis is denied. Service connection for cardiac hypertension is denied. Service connection for stomach/intestinal disability is denied. Service connection for a heart disability is denied. REMAND Unfortunately, the Board finds that further development is necessary regarding the Veteran's claim of entitlement to service connection for brain damage. For reasons explained immediately below, a remand is necessary for further evidentiary development, and to ensure compliance with the Board's prior remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). In its October 2012 remand, the Board requested that a VA examiner determine whether the Veteran currently has a disability manifested by brain damage, and if so, to provide an etiological opinion. As noted in the September 2013 examiner's report, he was unable to determine whether the Veteran had a disability manifested by brain damage because the Veteran was inadequately examined. Nevertheless, he offered a negative nexus opinion with respect to any current brain damage and the Veteran's military service. Based upon the inadequacy of the December 2012 and September 2013 examinations and opinions as to the issue of brain damage, the Board finds that this claim should be remanded for a new VA examination and opinion. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded an appropriate VA examination to determine the nature and etiology of his brain damage. The Veteran's claims files, including any records in electronic format, must be made available to the examiner prior to the examination. All tests and studies deemed necessary by the examiner should be performed. Based on a review of the claims folder and the clinical findings of the examiner, the examiner must: a) Identify whether the Veteran currently suffers from a disability manifested by brain damage. b) If a disability manifested by brain damage is diagnosed, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the disability is related to the Veteran's period of military service, to include exposure to asbestos. The examiner should provide a rational for all opinions provided. 2. Thereafter, readjudicate the Veteran's claim. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified but he 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). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs