Citation Nr: 1341763 Decision Date: 12/18/13 Archive Date: 12/31/13 DOCKET NO. 11-02 701 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for bilateral hearing loss, to include as secondary to service-connected residuals, status post left mandible fracture. 2. Entitlement to service connection for a dental disorder. 3. Entitlement to an increased rating for residuals, status post left mandible fracture currently rated 10 percent disabling. 4. Entitlement to a compensable rating for headaches. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION The Veteran served on active duty from November 1966 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran testified before the undersigned at a hearing held in July 2012. A transcript of the hearing is of record. 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). As this matter stems from an adverse RO determination, the appeal is limited to the issue of entitlement to service connection for dental trauma to the Veteran's teeth for compensation purposes. The matter of entitlement to VA outpatient dental treatment is referred to the RO as appropriate. See 38 C.F.R. § 17.161 (2013). FINDINGS OF FACT 1. A bilateral hearing loss disability was not shown in service and is not shown to be related to an injury, disease, or event in service or, to a service-connected disability. 2. The Veteran did not suffer an in-service combat wound or dental trauma, or disease such as osteomyelitis, which resulted in any loss of teeth or bone. 3. Prior to the promulgation of a decision, the Veteran withdrew his appeals for an increased rating for residuals status post left mandible fracture and for a compensable rating for headaches in signed correspondence received in May 2012. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.3.07, 3.309, 3.310, 3.385 (2013). 2. The criteria for service connection for a dental disorder including as due to service-connected residuals of a left mandible fracture, for the purposes of compensation, have not been met. 38 U.S.C.A §§ 101(2), 1110, 1712, 5303 (West 2002); 38 C.F.R. §§ 3.12, 3.13, 3.303, 3.310, 3.381, 4.150 (2013). 3. The criteria for the withdrawal of the Substantive Appeal with respect to entitlement to an increased rating for residuals, status post left mandible fracture have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2013). 4. The criteria for the withdrawal of the Substantive Appeal with respect to entitlement to service connection for a compensable rating for headaches have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify The RO provided pre-adjudication VCAA notice by letters dated in February 2009, March 2009 and August 2009. As for the content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (to the extent of pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006)(notice of the type of evidence necessary to establish a disability rating and an effective date). The case was thereafter readjudicated by way of supplemental statement of the case issued in May 2012. Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained the Veteran's service treatment records and VA and private medical records. VA examinations were conducted in October 2009, November 2009 and March 2011. The examinations are adequate because the examiners conducted clinical evaluations, reviewed the medical history, and described the claimed disabilities in sufficient detail so that the Board's evaluation is an informed determination. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4). The Veteran had the opportunity to present evidence and argument in support of his claims at a July 2012 Board hearing. The RO official or VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2). At the hearing in July 2012, the VLJ identified the issues on appeal. TheVLJ also specifically sought to identify pertinent evidence not currently associated with the claims, and the Veteran volunteered his recent treatment history and symptoms. Accordingly, the Veteran is not shown to be prejudiced on this basis. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the Board hearing. The record demonstrates that the Veteran is fully aware of the issues on appeal, the criteria needed to substantiate his claims, and the evidence required to support his claims. As the Veteran has not identified any additional evidence pertinent to the claims and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran is required to comply with the duty to assist. I. Service Connection Hearing Loss The Veteran seeks service connection for a bilateral hearing loss disability, to include as secondary to a fracture of the left mandible in service. Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). VA may only find hearing loss to be a 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 thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Veteran's service treatment records do not show objective evidence of a hearing loss disability in either ear as defined by 38 C.F.R. § 3.385. [For the purposes of adjudication, the Board has converted the in-service audiometric results from the standards set forth by the American Standards Association, to the standards set by the International Standards Organization-American National Standards Institute (ISO-ANSI)]. The service records also do not show any subjective complaints of hearing loss, in connection with the injury to the Veteran's jaw, or otherwise. On separation physical examination in October 1968, whispered voice test results were 15/15, bilaterally, and no hearing defects were noted on the examination report. The Veteran specifically denied symptoms of hearing loss on his October 1968 Report of Medical History. Sensorineural hearing loss is considered a chronic disease pursuant to 38 C.F.R. § 3.309(a). With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Here, sensorineural hearing loss was not diagnosed in service or within the one-year period after the Veteran's discharge. Moreover, as symptoms of hearing loss were not noted in service, and as there is no competent evidence either contemporaneous with or after service that symptoms of hearing loss were noted in service, and as the Veteran has not asserted otherwise, the principles of service connection pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply. See 38 C.F.R. § 3.303(b), 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this respect, the Board notes that during the Veteran's hearing before the undersigned he testified that after he left service he "started winding up turning my head like to listen to people and stuff like that there." See, July 2012 Hearing Transcript, p. 5. Also Dr. Kheny's December 2009 record reflects that the Veteran "has been aware of hearing problems for the past 25 years," which is since 1984 and many years after service separation. The record is absent any competent lay or medical evidence which establishes that the Veteran's current hearing loss disability is causally related to service or to his service-connected residuals status post left mandible fracture. 38 C.F.R. §§ 3.303(d), 3.310, 3.381 (2013). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). The Veteran is competent to describe noise exposure and impaired hearing. These assertions are all within the realm of his personal experience. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, determining the etiology of sensorineural hearing loss, and whether it is related to service or to a remote history of trauma to the jaw therein, is a complex question that requires medical expertise. The Veteran is not shown to be qualified through specialized education, training, or experience to provide a medical opinion regarding the etiology of his sensorineural hearing loss. Therefore, his lay contentions are not competent evidence on the material issue of causal nexus. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The competent evidence with respect to causal nexus in this case consists of the November 2009 VA audiologic examination report. The report shows that an audiologist opined that the Veteran's current hearing loss disability is not related to service or to his service-connected residual, status post left mandible fracture. The VA audiologist is qualified through education, training, and experience to diagnose and offer a medical opinion regarding the Veteran's hearing loss. The examiner reviewed the Veteran's entire service file and the examiner's opinion was clear, unequivocal, and supported by a well-reasoned rationale. Therefore, the VA opinion is persuasive evidence with respect to the etiology of the current hearing loss disability. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-3 (2008); see also 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). There is no competent, persuasive evidence that links the Veteran's current bilateral hearing loss disability to any injury or event in service, or to any service-connected disability. The August 2006 medical record of Dr. Gadomski and the December 2009 correspondence from Dr. Kheny do not establish a causal nexus between current bilateral hearing loss and the in-service jaw fracture. Rather, Drs. Kheny and Gadomski merely note that the Veteran has prior history of trauma to the left jaw; causal nexus opinions were not provided. Finally, a sensorineural hearing loss disability is not shown to have manifested to a compensable degree within one year of the Veteran's discharge from service in January 1969. Thus, it may not be presumed that the current hearing loss disability manifested in service. 38 C.F.R. §§ 3.307, 3.309. Accordingly, the Board finds that service connection for a bilateral hearing loss disability, claimed as secondary to service-connected residuals of a left mandible fracture, is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Dental Disorder The Veteran also seeks service connection for a dental disorder, specifically a loss of teeth. He asserts that sustained dental trauma due to a fracture of his left mandible in service. On the Veteran's March 2010 Notice of Disagreement and February 2011 Substantive Appeal he reported that his "teeth were knocked out" at the time of the fracture. In a March 2009 statement, and during his July 2012 hearing testimony, he reported that during the course of treatment for the fracture, his mouth was wired shut and several teeth were removed so that he could use a feeding tube. Service connection may be awarded for missing teeth due to dental trauma or bone loss in service. The law and regulations also provide that treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are considered non-disabling conditions and may be considered service-connected solely for the purpose of determining entitlement to VA dental examination or outpatient dental treatment. See 38 U.S.C.A. § 1712; 38 C.F.R. §§ 3.381, 17.161 (emphasis added); see also Woodson v. Brown, 8 Vet. App. 352, 354 (1995). The term "service trauma" does not include the intended effects of therapy or restorative dental care and treatment provided during a veteran's active service. See 38 C.F.R. § 3.306(b)(1) (2013); VAOGCPREC 5-97. Dental disabilities which may be awarded compensable disability ratings are set forth under 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, 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 (DCs) 9900-9916. To establish entitlement to service connection for loss of a tooth, the Veteran must have sustained a combat wound or other in-service trauma. 38 U.S.C.A. § 1712; 38 C.F.R. § 3.381(b). The significance of finding that a dental condition is due to in- service trauma is that a Veteran will be eligible for VA outpatient dental treatment, without being subject to the usual restrictions of a timely application and one-time treatment. 38 C.F.R. § 17.161(c). As noted, establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). With regard to this matter, the service treatment records show the Veteran sustained a fracture of his left mandible in December 1968 after he was in a fight. The service dental records do not, however, reflect that he lost any teeth due to dental trauma (or disease such as osteomyelitis) as a result of that fracture or the clinical treatment of that fracture. Therefore, the Veteran's current assertions that his "teeth were knocked out" at the time of his mandible fracture and that several teeth were removed concurrent with the in-service treatment of such fracture are simply not credible. Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). There is no other evidence of tooth loss due to dental trauma or disease other than periodontal disease in service. The treatment which the Veteran received for his fractured jaw (wiring of his jaw) while on active service constituted dental treatment and is not considered a dental disability due to in-service trauma for VA compensation purposes. See 38 C.F.R. § 3.306(b)(1); VAOGCPREC 5-97. The record is also absent competent evidence showing the Veteran's missing teeth are due to in-service dental trauma or disease such as osteomyelitis. 38 C.F.R. §§ 3.303(d), 3.310, 3.381 (2013). The Veteran is competent to report that he was hit in the jaw and that his teeth were knocked out, and that additional teeth were removed during subsequent treatment. 38 C.F.R. § 3.159(a)(2). These assertions are all within the realm of his personal experience. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, determining whether any missing teeth are due to chronic disease such as osteomyelitis is also a complex question that requires medical expertise. The Veteran is not shown to be qualified through specialized education, training, or experience to provide medical opinions to diagnose chronic dental diseases such as osteomyelitis. Therefore, his lay contentions are not competent evidence on the material issue of causal nexus. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addition, and as already noted, the Veteran's report that his "teeth were knocked out" at the time of his mandible fracture and that several teeth were removed concurrent with the in-service treatment of such fracture is not credible. As these assertions are not credible, they have no probative value. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). The competent evidence with respect to causal nexus in this case consists of the October 2009 and March 2011 VA dental examination reports. The VA dental examination reports show that an examiner determination there was no evidence of tooth loss associated with the in-service fracture or the post-operative course of management, including the Veteran's use of a tube for nutrition purposes. The examiner further determined that there is no evidence that the mandible fracture caused loss of dentition or that the fracture has healed incorrectly or incompletely. The respective VA examiner, a doctor of dental surgery, is qualified through education, training, and experience to diagnose and offer a medical opinion regarding the Veteran's claimed dental disorder. The examiner reviewed the Veteran's entire service file and each examiner's opinion was clear, unequivocal, and supported by a well-reasoned rationale. Therefore, the VA opinion is persuasive evidence with respect to the etiology of the Veteran's missing teeth. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-3 (2008); see also 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). There also is no competent evidence linking the Veteran's missing teeth to any in-service dental trauma or disease, such as osteomyelitis. Accordingly, the Board finds that service connection for a dental disorder, claimed as secondary to service-connected residuals of a left mandible fracture, is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). II. Withdrawn Claims The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.101. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In correspondence received in May 2012, the Veteran expressed his intent to withdraw the issues of entitlement to an increased rating for residual, status post left mandible fracture evaluated at 10 percent and entitlement to a compensable rating for headaches. Thus, there are no allegations of error of fact or law for appellate consideration on these claims. Accordingly, the Board does not have jurisdiction to consider an appeal in these matters. ORDER Service connection for bilateral hearing loss to include as secondary to residuals, status post left mandible fracture, is denied. Service connection for a dental disorder is denied. The claim of entitlement to an increased rating for residuals, status post left mandible fracture evaluated at 10 percent is dismissed. The claim of entitlement to a compensable rating for headaches is dismissed. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs