Citation Nr: 1342323 Decision Date: 12/20/13 Archive Date: 12/31/13 DOCKET NO. 05-09 519 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for hiatal hernia. 2. Entitlement to service connection for an eye condition. 3. Entitlement to service connection for a skin disability (claimed as acne). 4. Entitlement to service connection for a dental condition for compensation purposes. 5. Entitlement to service connection for a dental condition for treatment purposes. 6. Entitlement to specially adapted housing. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from June 1965 to December 1968. These matters came to the Board of Veterans' Appeals (Board) from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO), in Philadelphia, Pennsylvania. In May 2003, the RO, in pertinent part, determined that new and material evidence had not been received to reopen the claims of entitlement to service connection for sinusitis, acne, any eye condition or impaired vision, and hiatal hernia. In February 2004, the RO, in pertinent part, determined that new and material evidence had not been received to reopen the claims of entitlement to service connection for sinusitis, acne, any eye condition or impaired vision, hiatal hernia, status post ingrown toenail, allergy, and any teeth condition. In November 2004, the RO, in pertinent part, denied entitlement to specially adapted housing. In May and July 2005, the RO continued the determination that new and material evidence had not been received to reopen the claim of entitlement to service connection for any eye condition or impaired vision. In February 2009, the Veteran testified during a videoconference hearing before the undersigned; a transcript is of record. In June 2009 and June 2011, the Board remanded all of the issues on appeal. In April 2013, the Board determined that new and material evidence had been received to reopen the claims of entitlement to service connection for residuals of left toe disability; eye disability or impaired vision; sinusitis; allergy disability; hiatal hernia; and, a skin disability and remanded these issues on the merits. The Board also remanded the issue of entitlement to service connection for a dental condition and entitlement to specially adapted housing. In a June 2013 rating decision, the Appeals Management Center (AMC) granted entitlement to service connection for recurrent ingrown toenail (claimed as left toe disability), assigning a noncompensable rating, effective May 16, 2013. In an August 2013 rating decision, the AMC granted entitlement to service connection for chronic sinusitis with allergic rhinitis, assigning a noncompensable rating, effective May 8, 2003; assigning a 10 percent rating, effective December 20, 2003; and, assigning a 50 percent rating, effective May 16, 2013. The grant of service connection for these disabilities constitutes a full award of the benefits sought on appeal as to these issues. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The issues of entitlement to service connection for hiatal hernia, an eye disability, skin disability, dental disability for treatment purposes, and entitlement to specially adapted housing are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC. VA will notify the Veteran if any further action is required on his part. FINDING OF FACT The Veteran's current dental disorders are not a result of trauma in service. CONCLUSION OF LAW The criteria for entitlement to service connection for a dental disorder for compensation purposes have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.381 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126; Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); C.F.R. § 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must inform a claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In January 2008, August 2009, January 2010, July 2011, and April 2013 VCAA letters were issued to the Veteran with regard to his claims of service connection. Collectively, the letters provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal, and what type of information and evidence was needed to establish a disability rating and effective date. In the present case, complete notice was not issued prior to the adverse determination on appeal. However, as detailed hereinabove, this matter was remanded to ensure fully compliant notice and readjudication on the merits, and the collective notices constitute fully compliant notice with regard to the service connection claims. Moreover, the claims were most recently readjudicated in the August 2013 supplemental statement of the case. Accordingly, any timing deficiency has here been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). The duty to assist has also been satisfied, and there has been substantial compliance with the Board Remands. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran's service treatment records have been associated with the claims folder. VA treatment records have been obtained and reviewed, to include VA treatment records associated with the Virtual VA claims folder. A private treatment record has been received from Eugene E. Stec, M.D. The Veteran offered testimony at a hearing before the undersigned Veterans Law Judge in February 2009. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Although the Veteran has provided a competent report of dental trauma in-service, as discussed below, his report is not deemed credible, and there is no other evidence that a current dental condition may be related to in-service trauma. Accordingly, an examination is not required. There is no indication that there is any relevant evidence outstanding in these claims, and the Board will proceed with consideration of the Veteran's appeal. Service connection Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza elements, in the case of a listed chronic disease, is through a demonstration of continuity of symptomatology. This provision is inapplicable to this case because the claimed condition is not a listed chronic disease. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see 38 U.S.C.A. § 1101 (West 2002); 38 C.F.R. § 3.309(a) (2013). In adjudicating this claim, the Board must assess the Veteran's competence and credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368- 69 (2005). Competent lay evidence means 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 the facts or circumstances and conveys matters that can be observed and described by a lay person). 38 C.F.R. § 3.159(a)(2). Dental condition for compensation purposes Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses and periodontal disease will be considered service connected solely for the purpose of establishing eligibility for outpatient dental treatment as provided in § 17.161 of this chapter, but not for purposes of compensation. See 38 C.F.R. § 3.381(a). Service treatment records reflect that the Veteran sought dental treatment during service, to include for extractions, capping, and traumatic occlusion, and general periodontal treatment. Service treatment records do not reflect that the Veteran sustained any dental trauma or sought treatment as a result of dental trauma. In November 1966, the Veteran underwent a dental type II examination at the Veteran's request. A very small right spermarele or hydrocele was noted and was determined to be not disqualifying. The examiner stated that it was actually smaller than noted on consultation in June 1965 and it was felt to be non-disqualifying at that time. He was dentally qualified for a remote tour. The October 1968 Report of Medical Examination conducted for separation purposes reflects that he was characterized as Class 2, Type 3, Qualified, with regard to dental defects and diseases. In April 1969, the Veteran filed an application for VA outpatient dental treatment, claiming "dental cavities." See Volume 1. On such application, the Veteran did not check the 'Yes' or 'No' box with regard to whether he was claiming the dental condition was due to the result of combat wounds or trauma to his face or jaw. In a July 1969 'Dental Rating Sheet,' VA outpatient treatment was granted for teeth numbers 4-13. The remarks indicate that there was no evidence of combat, prisoner of war (POW) status, or service trauma to the teeth. See Volume 2. In September 2002, the Veteran filed a claim of service connection for upper and lower teeth disabilities. In a February 2003 statement the Veteran, asserted that he fell on his jaw during service in May 1967. He claimed that he was "butchered" by in-service dentists who "were pulling teeth left and right." He also asserts that he fell on his eye, teeth and nose in 1966. He stated that he was requesting dental care as he cannot properly chew. The Board notes at this juncture that in a precedent opinion, VA's General Counsel held that dental treatment of teeth, even extractions, during service does not constitute dental trauma. See VAOPGCPREC 5-97, 62 Fed. Reg. 15,566 (1997). Service treatment records do not reflect that the dental treatment during service rendered was due to any in-service trauma sustained during service, to include injuring his jaw. Service treatment and dental records do not reflect any complaints or treatment related to any traumatic incident involving the jaw. He underwent dental treatment in service which was routine in nature. Likewise, in 1969 the Veteran claimed entitlement to dental condition for treatment purposes but did not claim trauma at that time. Moreover, there was no determination that his teeth had been subject to trauma. Although it is clear that the Veteran underwent dental treatment during service, the service treatment records are devoid of any notation that such treatment was a result of any in-service trauma. The Veteran sought treatment for a variety of ailments during service and sought regular dental treatment. Thus, if in fact the Veteran had suffered trauma to his jaw or teeth as a result of injury, it is likely that he would have sought treatment as a result of such incident; however, service treatment records do not reflect reports of any such incident or that dental treatment was rendered due to any such trauma. Likewise, he would have claimed such trauma upon claiming dental treatment shortly following separation from service. Additionally, the post-service medical evidence reflect treatment for a variety of dental conditions, to include periodontal disease, extractions, and impacted teeth, but none of the examiners have indicated that such conditions are due to trauma. The contemporaneous service records that were documented in the context of necessary medical treatment are of greater weight and probative value than statements of recollection of events based on memory over 30 years after the events in question. The Board finds the Veteran's assertions of jaw trauma offered decades after separation from service lack credibility, as his assertions are in contradiction with the contemporaneous records generated during service and shortly following service. The Veteran's relatively recent assertions of in-service jaw trauma are contradicted by his earlier statements in which he claimed entitlement to VA dental treatment but reported no in-service trauma, and the fact that reported no trauma on the numerous occasions when he received dental and other treatment during service. Accordingly, his reports of in-service dental trauma lack credibility. When all the evidence is assembled, the Secretary is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for missing teeth and periodontal disease for compensation purposes is not legally permitted, and to that extent, as a matter of law this claim must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). As discussed, there is no credible evidence of any in-service dental trauma which resulted in residuals, additional loss of teeth, malunion or nonunion of the maxilla, or loss of body of the maxilla or mandible. See generally, VAOPGCPREC 5-97; 38 C.F.R. 4.150, Diagnostic Codes 9913-9916. Consequently, the weight of the evidence is against service connection for a dental condition for compensation purposes. Reasonable doubt does not arise and the claim is denied. ORDER Entitlement to service connection for dental condition for compensation purposes is denied. REMAND Hiatal Hernia The Boards previous decision that there was new and material evidence to reopen the claim, entitled the Veteran to a VA nexus examination. Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). Skin disability In June 2013 VA examiner reviewed the Veteran's claims folders and opined that dermatitis was less likely as not a characteristic of adolescent acne which he was treated for during active service. The examiner, however, did not address any of the other current skin diagnoses of record, and mentioned in the Board's last remand. Eye disability At a May 2013, VA eye examination the examiner noted that the Veteran has been followed at the Ochsner PA eye clinic for greater than 10 years for multiple eye conditions. Records of this treatment have not been obtained, but VA has a duty to obtain them. 38 C.F.R. § 3.159(c)(1). With regard to the findings in the VA examination report, it is noted that the examiner failed to respond to the inquiries outlined in the April 2013 Board Remand instructions, in that it did not include a rationale. Such opinion is nonresponsive to the Board's directives and does not contain appropriate rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Dental condition for treatment purposes In this decision, the Board has denied entitlement to service connection for dental disability for compensation purposes; however, it appears that the Veteran is also claiming entitlement to service connection for treatment purposes. In the August 2013 supplemental statement of the case, the AMC did not discuss the prior July 1969 and November 1989 RO decisions in adjudicating whether service connection is warranted for treatment purposes. The claim of entitlement to service connection for dental disability for treatment purposes must be addressed in light of the prior grant of VA outpatient treatment and the November 1989 RO determination that he was "service connected for certain teeth." Specially adapted housing The issue of entitlement to specially adapted housing is inextricably intertwined with the service connection claims still in appellate status. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following actions: 1. Take appropriate action on the claim of entitlement to service connection for a dental disability for treatment purposes, in light of the prior July 1969 grant of VA outpatient treatment and the November 1989 RO determination that he was "service connected for certain teeth." 2. Ask the Veteran to complete a release (VA Form 21-4142) for VA to obtain records from Ochsner PA eye clinic. 3. Schedule the Veteran for an examination to determine whether the Veteran has had a hiatal hernia at any time since 2002; and if so, whether the hiatal hernia is or was related to a diseae or injury in service. The examiner should provide reasons for the opinion that take into account the Veteran's reports. 4. Thereafter, schedule the Veteran for a VA dermatology examination with a physician with appropriate expertise to determine whether any current skin disability is related to service. The claims folder and a copy of this remand must be provided to the examiner prior to the examination. The examiner should provide an opinion as to whether it is at least as likely as not (i.e., a likelihood of 50 percent or more) that a skin disability, to include eczema, dermatitis, solar damage, seborrhea of the face and scalp, xerosis, basal cell carcinoma of the right shoulder, or any other skin disability documented in the medical records, is a result of service or any incident therein. The examiner should provide reasons for the opinions. The examiner is advised that the Veteran is competent to report his symptoms and history, and that his report must be considered in formulating the requested opinions. If the examiner rejects the reports of the Veteran, the examiner must provide reasons for doing so; the mere absence of supporting clinical evidence is an insufficient reason; by itself for rejecting his report. If opinions cannot be rendered without resorting to speculation as to the etiology of his skin disabilities, the examiner should discuss in detail why an opinion cannot be offered. 5. Thereafter, schedule the Veteran for a VA eye examination with a physician with appropriate expertise to determine whether an eye disability is related to service. The claims folder and a copy of this remand must be provided to the examiner prior to the examination. The examiner should provide an opinion as to the following: a) Has the Veteran had a disability of right eye or left eye at any time since 2002? If so, is it an acquired disability, or a developmental defect or refractive error? b) If the examiner determines that the Veteran has a current acquired disability of the left eye or right eye, is such disability causally related to service? The examiner should provide reasons for these opinions. The examiner is advised that the Veteran is competent to report his symptoms and history, and that his report must be considered in formulating the requested opinions. If the examiner rejects the reports of the Veteran, the examiner must provide reasons for doing so; the mere absence of supporting clinical evidence is an insufficient reason; by itself for rejecting his report. If opinions cannot be rendered without resorting to speculation as to the etiology of any eye disability, the examiner should discuss in detail why an opinion cannot be offered. 6. The AMC/RO should then review the opinions and/or examination reports to ensure that the above questions have been clearly answered and a rationale furnished for all opinions. If not, appropriate action should be taken to remedy any such deficiencies. 7. If any of the benefits sought on appeal remain denied, issue a supplemental statement of the case; then return the case to the Board, if otherwise in order. The Veteran and his representative have 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). ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs