Citation Nr: 1339281	
Decision Date: 11/29/13    Archive Date: 12/13/13

DOCKET NO.  10-40 936	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas

THE ISSUES

1.  Entitlement to service connection for tinnitus.

2.  Entitlement to service connection for bilateral hearing loss.

3.  Entitlement to service connection for dental problems as residuals of a jaw fracture for compensation purposes.

REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A. Larson, Associate Counsel


INTRODUCTION

The Veteran had active military service from April 1981 to April 1984.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In support of his claims, the Veteran had a videoconference hearing in November 2011.  The undersigned Veterans Law Judge (VLJ) of the Board presided.  A transcript of the proceeding is of record.

The claim for service connection for dental problems has been developed and adjudicated as a claim for service connection for a dental disorder for compensation purposes.  But the U.S. Court of Appeals for Veterans Claims (Court/CAVC) has held that a claim for service connection for a dental disorder is also a claim for VA outpatient dental treatment.  See Mays v. Brown, 5 Vet. App. 302 (1993).  In dental claims, the RO adjudicates the claim for service connection and the VA Medical Center (VAMC) adjudicates the claim for outpatient treatment.  Effective February 29, 2012, VA amended its adjudication regulations regarding service connection of dental conditions for treatment purposes under 38 C.F.R. § 3.381.  See 77 Fed. Reg. 4470 (Jan. 30, 2012) (codified at 38 C.F.R. § 3.381(a) (2013)).  This section identifies some of the circumstances under which dental conditions that may not qualify as disabilities for purposes of VA disability compensation nevertheless may be service connected for purposes of VA dental treatment under 38 U.S.C. § 1712 and 38 C.F.R. § 17.161.  The amendments clarify existing regulatory provisions and reflect the respective responsibilities of the Veterans Health Administration (VHA) and the Veterans Benefits Administration (VBA) in making determinations concerning eligibility for dental treatment.

The revised version of 38 C.F.R. § 3.381 provides that VBA will adjudicate a claim for service connection of a dental condition for treatment purposes after VHA determines a Veteran meets the basic eligibility requirements of § 17.161 of this chapter and requests VBA make a determination as to certain questions, including, but not limited to:  (1) former prisoner of war status; (2) whether the Veteran has a compensable or noncompensable service-connected dental condition or disability; (3) whether the dental condition or disability is a result of combat wounds; (4) whether the dental condition or disability is a result of service trauma; or (5) whether the Veteran is totally disabled due to a service-connected disability.  38 C.F.R. § 3.381.

The record does not indicate that a determination from the VAMC (VHA) regarding eligibility for VA outpatient dental treatment has been made.  Thus, the issue of entitlement to VA outpatient dental treatment has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, so is referring it to the AOJ for appropriate action.


FINDINGS OF FACT

1.  The Veteran sustained acoustic trauma in service while serving as a tank turret repairman.  He also fractured his mandible (lower jaw bone) while in service.

2.  He now has tinnitus and bilateral hearing loss, also none of his original teeth.

3.  But he has not shown that his tinnitus and hearing loss are at least as likely as not the result of the acoustic trauma he sustained during his service.

4.  He equally has not shown that the fracture of his mandible in service led to any current dental condition, including loss of substance of the body of the maxilla or mandible and further led to the loss of his teeth.


CONCLUSIONS OF LAW

1.  It is not shown the Veteran's tinnitus is the result of disease or injury incurred in or aggravated by his service.  38 U.S.C.A. § 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2013).

2.  It is not shown his bilateral hearing loss is the result of disease or injury incurred in or aggravated by his service or that it may be presumed to have been incurred during his service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013).

3.  It is not shown his dental problems are the result or residual of disease or injury during his service, including especially his mandible fracture.  38 U.S.C.A. § 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.381, 4.150 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Procedural Duties

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist a claimant in developing information and evidence necessary to substantiate a claim.  Specifically, when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, including apprising him of the information and evidence VA will obtain versus the information and evidence he is expected to provide.  38 C.F.R. § 3.159 (2013).  When the claim is for service connection, this notice should address all five elements of the claim:  1) Veteran status; 2) existence of disability; 3) a connection between the Veteran's service and the disability; but also the "downstream" 4) degree of disability, i.e., disability rating; and 5) effective date in the eventuality service connection is granted.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).

Here, the Veteran was provided a letter in July 2009 containing all of the notification required by 38 C.F.R. § 3.159, as defined by Dingess, and prior to the initial adjudication of the claims in December 2009, so in the preferred sequence according to the holding in Pelegrini v. Principip, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  Thus, the Board concludes that the duty to notify has been met.

To satisfy its duty to assist, VA must make reasonable efforts to assist him in obtaining evidence necessary to substantiate his claims.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  Here, to this end, his service records and VA records have been obtained and associated with his claims file for consideration.  He also was provided VA compensation examinations that, collectively, contain a description of the history of the disabilities at issue, document and consider the relevant medical facts and principles, and provide opinions regarding the etiologies of these claimed conditions, particularly in response to their claimed relationship with his military service.  This critical determination was made after reviewing the entire claims folder for the pertinent history, and the VA examiners' opinions are responsive to the determinative issues of whether there are current disabilities and, assuming so, the cause of them in relation to his military service.

In his June 2010 Notice of Disagreement (NOD), the Veteran indicated that relevant dental procedures were contracted by VA to a private facility named Heartland Dental Clinic.  This suggests some type of fee-basis arrangement.  He stated that records from this clinic would help him establish service connection.  Following receipt of his NOD, the RO later that month sent him a VA Form 
21-4142, "Authorization and Consent to Release Information to Department of Veterans Affairs," to fill out and return in order to obtain these confidential records.  He never completed this form, however, so the RO never requested these records.  While they may exist, VA's duty to assist is not a one-way street.  Olsen v. Principi, 3 Vet. App. 480 (1992).  Rather, VA's duty is just what it states, a duty to assist, not a duty to prove a claim with the claimant only in a passive role.  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  Thus, the Board concludes that VA's duty to assist with respect to obtaining relevant records and an examination has been met.  38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

Finally, as already alluded to, the Veteran testified at a videoconference hearing before the Board in November 2011.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Decision Review Officer (DRO) or Veterans Law Judge (VLJ) of the Board chairing a hearing fulfill two duties to comply with this VA regulation.  These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked and that may be potentially advantageous to the claimant's position.  Here, during the hearing, the presiding VLJ elicited testimony tending to support the Veteran's contentions and sought to identify any evidence not then currently in the claims file that might tend to substantiate the claims.  Moreover, the Veteran has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conducting of that hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claims and the Veteran, through his testimony, demonstrated he had actual knowledge of the elements necessary to substantiate his claims for benefits.  See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007).

II.  Standard of Review

In deciding these claims, the Board has reviewed all of the relevant evidence in the claims file, both the physical claims file and electronic ("Virtual VA") file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in exhaustive detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).


III.  Merits of the Claims

The Veteran contends that his current tinnitus and bilateral hearing loss, as well as dental problems that necessitated the removal of all of his teeth such that he is now edentulous, are directly attributable to his time spent on active duty as a tank turret repairman in the Army.

Service connection is granted for disability resulting from personal injury sustained or disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition, meaning for a permanent worsening of the condition above and beyond its natural progression.  38 U.S.C.A. §§ 1131, 1153; 38 C.F.R. §§ 3.303, 3.306.

"To establish a right to compensation for a present disability, a Veteran must show:  '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or an injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called 'nexus' requirement.'"  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

There is an alternative path to service connection using a presumption.  Presumptive service connection is available to Veterans who suffer from certain chronic disorders and diseases that manifest during service or within one year after service to the required minimum compensable degree of at least 10-percent disabling.  This presumption is rebuttable by affirmative evidence to the contrary, however.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).

If the conditions to presumptive service connection cannot be said to be "chronic" in the medical sense, a Veteran may still yet succeed if he can show a continuity of symptomatology under 38 C.F.R. § 3.303(b), but only assuming his condition is one listed in § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013).

To establish a showing of chronic disease in service, or within a presumptive period per § 3.307, 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," is required.  38 C.F.R. § 3.303(b).  Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  Id.

So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available.  See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Here, bilateral hearing loss (assuming it is sensorineural) qualifies under § 3.309(a) as chronic, as it is considered to be an organic disease of the nervous system.  The Veterans Benefits Administration's (VBA's) M21-1MR has a section titled "Determining Impaired Hearing as a Disability," which includes the following note:  "Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 CFR 3.309(a)."  
M21-1MR III.iv.4.B.12.a.  See, too, Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995 (reaffirming that sensorineural hearing loss is an organic disease of the nervous system).

Even so, however, there is no indication the Veteran's bilateral hearing loss began during his service or within the required one year presumptive period following the conclusion of his service, certainly not to the required minimum compensable degree of at least 10-percent disabling.  See 38 C.F.R. § 4.85.  Instead, the first ascertainable diagnosis of this condition was at the conclusion of his November 2009 VA compensation examination.  Thus, presumptive service connection is not warranted, so the following analysis focuses solely, instead, on direct service connection.  Service connection may be granted for a disease first diagnosed after service if the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

With regards to the medical evidence, a diagnosis or opinion by a health care professional is not conclusive and is not entitled to absolute deference.  Indeed, the Court has provided guidance for weighing medical evidence.  The Court has held, for example, that in meeting our responsibility to weigh the credibility and probative value of the evidence, we may accept one medical opinion and reject others.  Schoolman v. West, 12 Vet. App. 307, 310-11 (1999); Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)).  However, the Board is mindful that it cannot make its own independent medical determinations, and that it must have plausible reasons based on medical evidence in the record for favoring one medical opinion over another.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (citing Colvin v. Derwinksi, 1 Vet. Appl. 171 (1991)).  Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence and not necessarily by its quantity or source.

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See Id. at 303-04.

The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See Id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  

In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).

The Federal Circuit Court has held that "[l]ay 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 profession."  Jandreau v. Nicolson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."  Citing Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006)).  However, a Veteran is not competent to provide evidence as to more complex medical questions.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (discussing this in the context of a claim for rheumatic fever).

Once evidence is determined to be competent, the Board must determine whether the evidence also is credible.  See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) ("[Competency] is a legal concept determining whether testimony may be heard and considered by the trier of fact, while [credibility] is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.")

In order to grant a Veteran's claim of entitlement to service connection for an alleged disability, VA must examine the evidence and determine whether the claim is supported or the evidence for and against it is in relative equipoise, meaning about evenly balanced, with the Veteran prevailing in either event, or whether instead a preponderance of the evidence is against the claim, in which case the claim must be denied.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the documentation of a matter, VA shall give the benefit of the doubt to the Veteran.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Bilateral Hearing Loss and Tinnitus

The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155 (1993) (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)).  But before service connection may be granted for hearing loss, it must be of a particular level of severity.  For purposes of applying the laws administered by VA, impaired hearing only will be considered a ratable disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of these frequencies 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.

The Veteran was diagnosed with bilateral hearing loss and tinnitus at the conclusion of his November 2009 VA examination.  Specifically, he was diagnosed with mild to moderately severe sensorineural hearing loss in his right ear and moderate to moderately severe sensorineural hearing loss in his left ear.  Thus, he has at least established he has bilateral (right and left ear) hearing loss, also tinnitus.  Regarding tinnitus, it is "a noise in the ear, such as ringing, buzzing, roaring, or clicking.  It is usually subjective in type."  See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (DORLAND'S) 1956 (31st ed. 2007).  And, indeed, because of the inherently subjective nature of it, it is readily capable of even lay diagnosis.  Charles v. Principi, 16 Vet. App. 370 (2002).

But all of this notwithstanding, although there is no disputing the Veteran has bilateral hearing loss and tinnitus, questions remain regarding their etiologies - and particularly in terms of their alleged relationship with his military service.  To establish his entitlement to service connection for these claimed conditions, not only must there be competent and credible evidence of relevant disease or injury during his service, but also competent and credible evidence attributing these conditions to that disease or injury during his service.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").

There are no hearing loss or tinnitus diagnoses in the Veteran's service treatment records (STRs), also no suggestion of relevant complaints.  He stated his ears were normal on his March 1981 Report of Medical History and his ears were listed as normal at his entrance to service examination in March 1981, with his pure-tone thresholds, measured in decibels, as follows:


500 Hz
1000 Hz
2000 Hz
3000 Hz
4000 Hz
6000 Hz
Right
10
5
0
5
5
35
Left
10
5
0
10
15
30

In fact, the 35 decibel reading in the 6,000 Hz frequency for his right ear and 30 decibel reading in this same frequency for his left ear suggest he had hearing loss in each ear when entering service at this higher frequency, even if it is not within the 500, 1000, 2000, 3000 and 4000 Hz frequency range contemplated by 38 C.F.R. § 3.385.

Further, his STRs do not contain any notations of complaints or treatment for anything hearing or ear related.  The STRs do not include a separation examination, so there is no indication of his hearing acuity when he was departing service.

He contends that the acoustic trauma he sustained as a tank turret repairman in service caused his current bilateral hearing loss and tinnitus.  His DD Form 214 confirms that this was in fact his military occupational specialty (MOS).  He also has submitted other military personnel records further confirming he worked in that capacity.  He has competently reported continuous exposure to loud noise from tank engines, tools, and generators in this regard, all while never wearing hearing protection.  The Board therefore finds that his lay statements regarding the type and extent of his noise exposure in service are not just competent, but also credible and consistent with the circumstances, conditions and hardships of his service to have probative value and warrant conceding he sustained the type of acoustic trauma alleged in service.  38 U.S.C.A. §§ 1154(a).  He is competent to describe what happened during his military service because this is his firsthand knowledge of a factual matter.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).

Moreover, the Court has explained that a Veteran need not satisfy the threshold minimum requirements of 38 C.F.R. § 3.385 while in service, including at time of discharge, although he must presently to have a ratable disability.  See Hensley v. Brown, 5 Vet. App. 155 (1993); see also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  But there also has to be attribution of this disability to his military service, as opposed to other ("intercurrent") causes.

To assist in making this important determination, the RO provided him the VA examination in November 2009 to determine the severity of his hearing loss (that is, to assess whether it met the threshold minimum requirements of § 3.385 to be considered an actual ratable disability) and, if it did, to comment on its etiology, also the etiology of the tinnitus or other ear-related conditions.  The examiner noted the Veteran's military noise exposure from "howitzers, tank guns, tank engines, and small weapons fire."  He also noted the Veteran's occupational noise exposure as a civilian while working as a farm-hand before service and as a mechanic after service, during which he was exposed to engine noise.  As well, the examiner noted the Veteran's current complaints of bilateral hearing loss, which were described as beginning gradually "many years ago."  The examiner further noted that the Veteran reported his father suffered from hearing loss, and that the Veteran had experienced ear infections and vertigo since his discharge from service.  His pure-tone thresholds, measured in decibels, were as follows:


500 Hz
1000 Hz
2000 Hz
3000 Hz
4000 Hz
Average
Right
20
15
25
50
60
37.5
Left
20
20
20
40
65
36.25

He also registered scores of 96 percent in both ears on the Maryland CNC Word List speech recognition test.

He therefore had sufficient hearing loss in each ear to be considered a ratable disability according to 38 C.F.R. § 3.385.

But regarding the etiology of the Veteran's bilateral hearing loss, which is an additional consideration in determining whether service connection is warranted, the examiner opined that it was less likely than not (less than 50/50 probability) this condition was caused by or a result of the Veteran's military service.  The reasoning provided was that the Veteran's occupational noise exposure as a mechanic in the years after discharge from service was more likely than not the main contributor to his present-day hearing loss.

The examiner also opined that the Veteran's tinnitus was not caused by or a result of his military service.  The reasoning provided was that the onset of tinnitus was not directly linked to the Veteran's military service and since he had reported occupational noise exposure, ear infections, and vertigo, which all could have caused his tinnitus.

This VA examiner, therefore, completely disassociated both the bilateral hearing loss and tinnitus from the Veteran's service.  There is no medical evidence tending to refute this VA examiner's unfavorable opinion; instead, there are only the Veteran's unsubstantiated lay allegations of a cause-and-effect correlation between his military service and the eventual development of these conditions.

In Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the Court addressed lay evidence as potentially competent to support the presence of disability, including during service and since, even where not corroborated by contemporaneous medical evidence such as treatment records.  The Court in Buchanan went on to also note, however, that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence.  The Federal Circuit Court held that, while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence.  See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record").  Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, 

the claimant's interest may affect the credibility of his testimony when considered in light of the other factors.  See Cartright, 2 Vet. App. at 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . .").

So while it is true the Veteran is competent to say he experienced the type of noise exposure in service alleged, and his lay testimony concerning this also is credible, this is not in turn tantamount to concluding his hearing loss and/or tinnitus resulted from the noise exposure in service - especially where, as here, the VA compensation examiner charged with making this important determination has rather definitively concluded otherwise.  In determining whether service connection is warranted, the Board must analyze the credibility and probative value of all the relevant evidence, so both the medical and lay evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the Veteran.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence."  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).

Though the Board can accept the Veteran's lay statements regarding in-service noise exposure, greater weight must be placed on the opinions contained in the November 2009 VA examination report.  The audiologist considered the Veteran's entire case file, work history, and recreational history in concluding that his hearing loss and tinnitus were not at least likely as not caused by his military service.  The Board attaches significant probative value to this opinion, as it is well reasoned, detailed, consistent with other evidence of record, and included relevant background of the Veteran.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  Furthermore, the opinions are based not just on an absence of diagnoses or treatment in service, but more so on the fact the Veteran experienced post-service events that the examiner felt were more likely the cause of his conditions.  Thus, the opinion is adequate for use in deciding these claims since the examiner acknowledged the claimed injury (acoustic trauma) during the Veteran's service, just did not believe that injury or trauma in service is the source or cause of his present-day hearing loss and tinnitus, primarily owing to the additional noise exposure since service in other, unrelated, capacities.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied entirely on the absence of evidence in the STRs to provide a negative opinion)..

As the only evidence the Veteran has submitted in support of his claims are his lay statements, meaning there is a 25-year gap between his discharge from service and any complaints of hearing loss or tinnitus, much less objective clinical findings such as diagnoses, the Board concludes that the preponderance of the evidence is unfavorable to both of these claims.  In this circumstance, the Board may consider the absence of any indication of a relevant medical complaint until so relatively long after service as one factor, just not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability.  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).  See, too, Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology since service and had failed to account for the lengthy time period following his service during which there was no clinical documentation of the claimed disorder).

Ultimately, the Board must consider all the evidence relevant to the claims, including the availability of medical records, the nature and course of the diseases or disabilities, the amount of time that has elapsed since military service, and any other pertinent facts.  Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000).  Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role.  See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness).

Since, for the reasons and bases discussed, the preponderance of the evidence is against these claims for bilateral hearing loss and tinnitus, the benefit of the doubt rule does not apply and these claims must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Dela Cruz v. Principi, 15 Vet. App. 143, 148-49 (2001).

Dental Problems

The Veteran is additionally seeking VA compensation for dental problems, namely, for the loss of all of his teeth.  He is now edentulous.  He asserts this condition is traceable to his time in service, specifically, an instance when he fractured his jaw during a bar fight.

Disability compensation and VA outpatient dental treatment may be provided for certain specified types of service-connected dental disorders.  For other types of service-connected dental disorders, the claimant may receive treatment only and not compensation.  38 U.S.C.A. § 1712; 38 C.F.R. §§ 3.381, 4.150, 17.161.

As already indicated, the claim for service connection for a dental disorder, for the alternative or additional purpose of obtaining VA outpatient treatment, has been referred to the VAMC for appropriate action, including adjudication.  This decision, then, is limited to considering entitlement to service connection for a dental disorder for compensation purposes.

Dental disabilities that may be awarded compensable disability ratings are set forth in 38 C.F.R. § 4.150.  These disabilities include chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss of the mandible, nonunion or malunion of the mandible, loss of the maxilla, nonunion or malunion of the maxilla, limited temporomandibular motion, loss of the ramus, loss of the condyloid or coronoid processes, loss of the hard palate, loss of teeth due to the loss of substance of the body of the maxilla or mandible and where the lost masticatory surface cannot be restored by suitable prosthesis, when the bone loss is a result of trauma or disease but not the result of periodontal disease.  38 C.F.R. § 4.150, Diagnostic Codes 9900-9916.

The Veteran's STRs reflect that his dental health was described as acceptable during his enlistment examination in March 1981.  Dental records from once in service reflect that he had three wisdom teeth extracted in February 1982.  There is record of a bar brawl in March 1982 that resulted in him sustaining a fractured mandible, specifically, the left condyle and symphysis.   His jaw was wired together using arch bars and a mandibular splint.  These were removed in April 1982, so the following month.  In July 1983 he had a root canal at the number 25 tooth, and there is indication he received fillings in teeth numbers 2 and 4.  Additionally, that record notes swelling.  By January 1984 he was not experiencing any pain in his teeth.  Finally, in February 1984, the record indicates he was scheduled to have crowns inserted on teeth 3 and 14.

The Veteran testified during his November 2011 hearing that he eventually had to have all his teeth removed several years later, after service.  He said the procedure was contracted out by VA to Heartland Dental Clinic.  But as already pointed out, he did not complete and return VA Form 21-4142 allowing VA to obtain these confidential records, so they admittedly are not in the file.

In June 2006, the Veteran received treatment for a severe toothache at his VAMC.  Later, in July 2007, he received a dental consultation.  There, he noted pain when chewing and was missing teeth numbers 1, 14, 16, 17, 19, 31, and 32, while teeth 2 and 3 were non-restorable carious root remnants.  The dentist noted "non-existent oral hygiene" and diagnosed generalized severe periodontis.  He also stated that, if the Veteran was to be provided referral to a private facility via the Homeless Veteran Dental Program, his recommended course of action would be X-rays, extractions of the remaining teeth, so numbers 2-13, 15, 21, 23-26, prophy and periodontal scaling, and fabrication of upper complete denture and resin-based lower partial denture.  The Veteran states he was indeed referred to a private facility where these procedures were performed.


The Veteran attributes the loss of his teeth to a condition with his jaw bone, precipitated by the fractured mandible he sustained during his service.  He maintained in his testimony during his hearing that the dentists that had performed his teeth extractions had mentioned that the teeth were falling out because of bone deterioration due to infection.  He added that the dentists could not put in permanent teeth because there was not adequate bone in his jaw on which to attach them.

He had a VA compensation examination in November 2010 for his dental condition.  The examination was performed by the same dentist who earlier had provided the Veteran his dental consultation in July 2007.  The dentist reviewed the Veteran's claims folder, including all relevant STRs, as part of the examination.  He noted the specifics of the Veterans March 1982 mandible fracture as well as his June 1983 root canal.  It was the dentist's opinion that the root canal was the result of the jaw fracture the prior year.  The dentist also summarized his own report from July 2007 which directly preceded the extraction of the Veteran's remaining teeth.  It was further noted that the Veteran did not have any bone loss of the mandible, maxilla, or hard palate and that he did not suffer any residual effects of his jaw fractures.  The dentist concluded that:

the dental treatment that the patient received while on [a]ctive duty to include removal of wisdom teeth, fillings, root canal in tooth #25 and treatment of his mandible factures all had satisfactory results.  Judging from the condition of his dentition when I saw him first in 2007 it is my opinion that his loss of teeth was due to caries and periodontitis as a result of long term neglect.  It is not likely that his loss of teeth is due to his mandible fracture.

Based on the relevant medical and other evidence, both from during and since his service, the Board finds that he does not have a compensable dental disorder.  While the record clearly shows trauma to his jaw in service, there simply is no competent and credible evidence of loss of teeth due to loss of substance of the body of the maxilla or mandible due to bone loss through trauma or disease such as osteomyelitis.  While his STRs do document that he received fillings in service, having teeth filled or even extracted during service is not tantamount to dental trauma. VAOPGCPREC 5-97 (Jan. 22, 1997; revised Feb. 25, 1997), 62 Fed. Reg. 15,566 (1997).

The Board has considered his report that his private dentist mentioned an infection that had caused deterioration of his jaw bone.  He is competent to describe what he heard.  Consider also, however, that the connection between what a physician (or, here, dentist) said and a layman's account of what was purportedly said, filtered through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute competent evidence in support of a claim of entitlement to service connection.  See Robinette v. Brown, 8 Vet. App. 69, 77 (1995).  Moreover, such a purported conversation does not change the fact that such an infection ever has been documented in the claims file.  There is nothing in the record indicating the Veteran suffers from loss of substance in his jaw.  Instead, the Board places the most weight on the opinion by the VA dentist who provided the Veteran with both his July 2007 dental consultation and November 2012 dental compensation examination, as it is well reasoned, detailed, consistent with other evidence of record, and included relevant background of the Veteran.  See Prejean, 13 Vet. App. 444, 448-9 (2000).  It was the treating dentist's credible opinion that the Veteran's teeth loss was due to his own neglect (poor dental hygiene) and not his mandible fracture in service in the bar fight or altercation.

Additionally, there is no evidence indicating, nor does the Veteran assert, that he has any other of the conditions listed in 38 C.F.R. § 4.150 for which compensation is payable.  Consequently, the Board concludes there is no basis for granting service-connected VA disability compensation for any current dental disorder.

Because, for these reasons and bases, the preponderance of the evidence is against this claim, there is no reasonable doubt to resolve in his favor, and this claim resultantly must be denied.  38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).



ORDER

The claim of entitlement to service connection for tinnitus is denied.

The claim of entitlement to service connection for bilateral hearing loss is denied.

The claim of entitlement to service-connected compensation for dental problems as residuals of a mandible fracture is denied.




____________________________________________
Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs