Citation Nr: 1450428	
Decision Date: 11/13/14    Archive Date: 11/26/14

DOCKET NO.  07-07 148	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to service connection for a chronic respiratory disorder, including asthma, to include as due to asbestos exposure.

2.  Entitlement to service connection for a back disability, to include scoliosis.

3.  Entitlement to service connection for a bilateral hip disability.

4.  Entitlement to service connection for a dental disability, claimed as tooth removal due to a faulty bridge.

5.  Entitlement to compensation under 38 U.S.C.A. § 1151 for bilateral cataracts, macular degeneration, and medical radiation injuries.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States

WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Scott Shoreman, Counsel


INTRODUCTION

The Veteran had active service from September 1967 to September 1971.

This matter comes before the Board of Veterans' Appeals (Board) from August 2005 and November 2009 rating decisions of the above Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified in November 2010 before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing at the above VARO on the issue of service connection for a chronic respiratory disorder, including asthma, to include as due to asbestos exposure; a transcript is of record.  The Veteran was scheduled for a hearing by videoconference in August 2014 for the other issues.  He did not appear for the hearing, and no good cause has been shown.  Therefore, the hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d) (2014).

This issue of service connection for a chronic respiratory disorder, including asthma, to include as due to asbestos exposure, had also been remanded by the Board for additional development in March 2009.  All of the issue on appeal were then before the Board in June 2012, at which time the Board remanded the claim for additional development.  The requested development has been completed, and the claim is properly before the Board for appellate consideration.


FINDINGS OF FACT

1.  There is no probative evidence that the Veteran's chronic respiratory disorder, including asthma, is causally or etiologically related to service, to include as due to asbestos exposure.

2.  A preexisting back disability, to include as due to scoliosis, was not aggravated during service beyond the natural progress of the disorder; and a back disability, to include as due to scoliosis was not incurred in, and is not related to, active duty service.

3.  The record does not reflect a current hip disability.

4.  There is no evidence of tooth removal due to a faulty bridge in service, and the Veteran does not belong to any class of veterans as set out in applicable regulations entitled to VA dental treatment.

5.  The Veteran's bilateral cataracts, macular degeneration, and medical radiation injuries did not result from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event that was not reasonably foreseeable


CONCLUSIONS OF LAW

1.  The criteria for service connection for chronic respiratory disorder, including asthma, to include as due to asbestos exposure, have not been met.  38 U.S.C.A. §§ 1110 1154(a), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2014).
  
2.  The criteria for service connection for a back disability have not been met.  38 U.S.C.A. §§ 1110 1154(a), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309 (2014).

3.  The criteria for service connection for a hip disability have not been met.  38 U.S.C.A. §§ 1110 1154(a), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2014).

4.  A compensable dental disability was not incurred in or aggravated by active service, and the criteria for outpatient treatment for a dental disorder have not been met.  38 U.S.C.A. § 1712 (West 2002); 38 C.F.R. §§ 3.381, 4.150, 17.161 (2014).

5.  The criteria for compensation under the provisions of 38 U.S.C.A. § 1151 for bilateral cataracts, macular degeneration, and medical radiation injuries have not been met.  38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2014).
       

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Notify and Assist 

Under the Veterans Claims Assistance Act (VCAA), 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, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 C.F.R. § 3.159 (2014); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Such notice must advise that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim.  Id.; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.159, 3.326 (2014); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). 

Prior to initial adjudication of the Veteran's claims, letters dated in January 2005 and May 2009 fully satisfied the duty to notify provisions of VCAA.  38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).

With respect to the duty to assist in this case, the Veteran's service treatment records (STRs), VA treatment records and private treatment records have been obtained and associated with the claims file.  The Veteran was also provided with a VA respiratory examination in December 2012, the report of which has been associated with the claims file.  The examination report provides a well-reasoned rationale.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  

The RO did not afford the Veteran a VA examination on the other issues on the basis that there is already sufficient medical evidence to decide the claim, and the Board agrees.  In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court reviewed the criteria for determining when an examination is required by applicable regulation and how the Board applies 38 C.F.R. § 3.159(c).  The three salient benchmarks are: competent evidence of a current disability or recurrent symptoms; establishment of an in-service event, injury, or disease; and indication that the current disability may be associated with an in-service event.  The Board finds that there is no competent evidence of current left hip disability or teeth removed due to a faulty bridge.  While the Veteran had been diagnosed with a low back disability, there is no indication that it is associated with an in-service disease or injury, as discussed below in detail.  In addition, while he has bilateral cataracts, macular degeneration, and medical radiation injuries, the record does not show that they are associated with VA treatment.  Therefore, the Board finds that the evidence of record does not trigger the necessity of examinations for these issues in order to decide the claim on the merits.  See 38 C.F.R. § 3.159(c).

The Veteran has not made the RO or the Board aware of any additional pertinent evidence that needs to be obtained in order to fairly decide the issue addressed in this decision, and has not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of these issues.  As there is no indication that there are additional records that need to be obtained that would assist in the adjudication of the claim, the duty to assist has been fulfilled.

The Veteran has been afforded a hearing before a Decision Review Officer (DRO) and VLJ in which he presented oral arguments in support of his claims.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) requires that a DRO or VLJ who chairs a hearing fulfill two duties to comply with the above the 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.  

Here, during the hearings, the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits and the DRO and VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim, such as additional medical records or statement from treating providers.  Moreover, the Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has identified any prejudice in the conduct of the Board hearing.  By contrast, the hearings focused on the elements necessary to substantiate the claims.  As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. § 3.103(c)(2) were met and that the Board can adjudicate the claims based on the current record.  

II.  Service Connection

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2014).  

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  

Service connection will also be presumed for certain chronic diseases, including arthritis, if manifest to a compensable degree within one year after discharge from service.  See 38 C.F.R. §§ 3.307, 3.309 (2014).

A.  Chronic Respiratory Disorder, to Include as Due to Asbestos Exposure

There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos-related diseases.  However, in 1988 VA issued a circular on asbestos-related diseases which provided guidelines for considering asbestos compensation claims.  See Department of Veterans Benefits, Veterans Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988).  The information and instructions contained in the DVB Circular have since been included in VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (Oct. 3, 1997) (hereinafter "M21-1").  Subsequently, an opinion by the VA General Counsel discussed the development of asbestos claims.  VAOPGCPREC 4-2000 (April 13, 2000).

The Board notes that the aforementioned provisions of M21-1 were rescinded and reissued as amended in a Manual rewrite (MR) in 2005.  See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29, entitled "Developing Claims for Service Connection for Asbestos-Related Diseases," and Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9, entitled "Service Connection for Disabilities Resulting from Exposure to Asbestos."

VA must analyze the Veteran's claim of entitlement to service connection for asbestosis under these administrative protocols using the following criteria.  Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993).  The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease.  The exposure may have been direct or indirect, and the extent or duration of exposure is not a factor.  M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29a.

The Manual provisions acknowledge that inhalation of asbestos fibers and/or particles can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis).  Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure.  As to occupational exposure, exposure to asbestos has been shown in insulation and shipyard workers, and others.  The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease.  M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9a-f.

The Manual further provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the veteran.  M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9h.

VA treatment records show that the Veteran smoked cigarettes from 1967 to 2000.  The law provides that, for claims filed after June 9, 1998, as in the instant case, service connection may not be granted for on the basis that it resulted from disease or injury attributable to the use of tobacco products during active service.  See 38 U.S.C.A. § 1103(a) (West 2002); 38 C.F.R. § 3.300 (2014).

The STRs show that on a July 1967 pre-induction medical history report, the Veteran reported a history of asthma.  His lungs and chest were normal at the July 1967 pre-induction examination.  On a July 1971 medical history report, the Veteran indicated having never had asthma or shortness of breath.  The STRs do not show any treatment or diagnoses related to asthma or other respiratory disorder.

November 1990 private treatment records indicate that the Veteran had acute bronchitis with wheezing.  In September 1995 it was noted that the Veteran had a dry cough.  Private treatment records from May 2000 indicate that the Veteran had a significant degree of chronic obstructive pulmonary disease (COPD).  No opinion was provided on etiology.  December 2002 x-rays from private treatment showed no definite evidence of acute parenchymal process.

The Veteran wrote in a January 2005 statement that he was exposed to asbestos in Germany in 1969 when working on tearing down barracks.  

The Veteran had a VA examination in December 2012 at which he was diagnosed with asthma and COPD.  The examiner opined that they were less likely than not incurred in or caused by service.  It was noted that the examination and a review of the claims file did not show that the Veteran has asbestosis, other asbestos related lung diseases, or a restrictive lung disease.  A restrictive lung pattern on pulmonary function testing was the hallmark of asbestosis and was necessary for a diagnosis.  The Veteran's pulmonary function was consistent with COPD of the asthma variant.  The imaging studies also did not suggest any degree of asbestos lung disease.  The examiner noted that cigarette smoking, to any degree, is far and away the largest risk factor for COPD.  It was less likely than not that the Veteran's chronic respiratory disease was related to asbestos exposure in service.

The Board finds the Veteran's report of being exposed to asbestos during service to be credible.  Although the Veteran is competent to report on his own symptomatology, he is not competent to offer an opinion on whether his respiratory disability is related to asbestos exposure.  His statement on etiology is therefore not afforded probative value.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); citing Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir.2006)) (though the Federal Circuit held that lay evidence may be competent to establish a diagnosis of a condition, it did not state that lay evidence may be used to determine medical etiology).  The treatment records and the VA examination report do not indicate that a respiratory disorder, including asthma, is due to any event, disease or injury from military service.  Furthermore, the only competent opinion of record is from the VA examiner.

Because the evidence preponderates against the claim of service connection for a chronic respiratory disorder, including asthma, to include as due to asbestos exposure, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).

B.  Low Back Disability, to Include Scoliosis

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 pre-existed service and there must be clear and unmistakable evidence that the disorder was not aggravated by service.  A lack of aggravation may be shown by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the preexisting condition."  Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).   

A pre-existing disease or injury will be found to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability.  Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a).  A temporary or intermittent flare-up of a preexisting disease does not constitute aggravation. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991); Green v. Derwinski, 1 Vet. App. 320, 323 (1991).  If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996).

Private treatment records from December 1963, which predates the Veteran's service, indicate that he had scoliosis to the right in the lumbar spine with pelvic tilt, probably on a congenital basis.  A private physician wrote in June 1967 that the Veteran had a leg length differential of 0.75 inches.

Although the STRs do not show that scoliosis was noted when the Veteran entered service, the Board finds that the private treatment records from prior to service clearly and unmistakably shows that it existed prior to service.  However, the record clearly and unmistakably shows that it was not aggravated beyond its natural course during service.  The STRs do not show any complaints or treatment related to the back, except for the pre-service July 1967 medical history report in which the Veteran indicated having had recurrent back pain.  The physician noted that the Veteran had minor scoliosis, although on examination the spine was normal.  On the July 1971 medical history report the Veteran indicated that he had never had recurrent back pain.  The spine was normal at the July 1971 separation examination.

Although the Veteran is competent to report on his own symptomatology, the Board does not find his reports from the DRO hearing of in-service symptomatology and treatment related to the back to be credible because the STRs do not show in-service treatment.  Furthermore, the Veteran indicated in the July 1971 medical history report that he had never had recurrent back pain.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Therefore, by the Veteran's contemporaneous reports of his medical history reports that his back was not symptomatic during service, it may be concluded his current report is questionable, and of limited probative value.  Furthermore, there is no indication from the post-service treatment records that scoliosis was aggravated beyond its natural course during service, or any other current back disability is related to in-service disease or injury.  Therefore, the Board finds that there is clear and unmistakable evidence that scoliosis, predated service but was not aggravated beyond its natural course during active service, and likewise, that no other current back disability was incurred in service.  See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.306.

Because the evidence preponderates against the claim of service connection for a back disability, to include scoliosis, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-57 (1990).


C.  Bilateral Hip Disability

The STRs do not show any complaints, diagnoses or treatment related to a hip disability.  The Veteran has complained of hip pain after service.  However, the post-service treatment records do not show that he has been diagnosed with a hip disability.  The Veteran is competent to report symptoms such as pain.  While there have been symptoms, VA does not generally grant service connection for symptoms alone, without an identified basis for those symptoms.  The VA needs to identify a disability, not symptoms of a disability; although pain that causes limitation of function may result in a disability for VA purposes.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  Here, the weight of the evidence demonstrates that the Veteran does not currently have a diagnosis of a hip disability.  The Court has indicated that, in the absence of proof of a present disability, there can be no valid claim for service connection.  Brammer  v. Derwinski, 3 Vet. App. 223, 225 (1992).  See McClain v. Nicholson, 21 Vet. App. 319 (2007).  

Since an element for establishing service connection on a direct basis or a presumptive basis is the Veteran being diagnosed with a hip disability at any time during the pendency of his appeal and this claimant does not have this or a related diagnoses, the Board finds that entitlement to service connection for this disability must be denied.  38 C.F.R. §§ 3.303, 3.307, 3.309.

D.  Dental Disability, Claimed as Tooth Removal due to a Faulty Bridge

The Veteran is claiming service connection for a dental disability due to tooth removal from a faulty bridge during service.  In this regard, the Court of Appeals for Veterans Claims has specifically 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).

The Board will first address the claim of entitlement to service-connected compensation benefits.  The STRs show that the Veteran had dental treatment during service.  However, they do not show that he received a dental bridge during service.  

The Board finds that service connection for dental trauma has not been established.  Dental disorders which may be compensable include irreplaceable missing teeth, and disease and damage to the jaw.  38 C.F.R. § 4.150, DCs 9900-9916.  However, tooth loss is only compensable where it is due to loss of substance of the body of the maxilla or mandible without loss of continuity.  Further, the Note immediately following that code states, "These ratings apply only to bone loss through trauma or disease such as osteomyelitis, and not to the loss of the alveolar process as a result of periodontal disease, since such loss is not considered disabling."  Id.  Even if the Veteran had teeth removed during service as he states, there is no probative evidence of record that the loss of teeth was caused by loss of substance of the body of the maxilla or mandible.  The Veteran has not contended, and the evidence does not demonstrate, that he sustained any injury to the teeth or suffered from any qualifying disease of the jaw in service.  Nor is there any suggestion that he had any other condition listed among the compensable dental and oral conditions in the Rating Schedule.  See 38 C.F.R. § 4.150 (2014).  

The extraction of teeth in service is not considered dental trauma. The term "service trauma" does not include the intended effects of treatment provided during service.  See VAOPGCPREC 5-97.  Thus, the criteria for a compensable rating for dental disability have not been met.

Having determined that the evidence does not support an allowance of service-connected compensation benefits, the Board must now consider whether service connection may be established solely for the purpose of outpatient treatment.  

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.  In determining service connection, the condition of teeth and periodontal tissues at the time of entry into active duty will be considered.  Treatment during service, including filling or extraction of a tooth, or placement of a prosthesis, will not be considered evidence of aggravation of a condition that was noted at entry, unless additional pathology developed after 180 days or more of active service.  See 38 C.F.R. § 3.381.

With respect to dental conditions noted at entry and treated during service, 38 C.F.R. § 3.381 sets forth principles for determining whether a grant of service connection for treatment purposes is warranted:

(1) Teeth noted as normal at entry will be service-connected if they were filled or extracted after 180 days or more of active service.

(2) Teeth noted as filled at entry will be service-connected if they were extracted, or if the existing filling was replaced, after 180 days or more of active service.

(3) Teeth noted as carious but restorable at entry will not be service-connected on the basis that they were filled during service.  However, new caries that developed 180 days or more after such a tooth was filled will be service-connected.

(4) Teeth noted as carious but restorable at entry, whether or not filled, will be service-connected if extraction was required after 180 days or more of active service.

(5) Teeth noted at entry as non-restorable will not be service-connected, regardless of treatment during service.

(6) Teeth noted as missing at entry will not be service connected, regardless of treatment during service.

In addition to the above principles, 38 C.F.R. § 3.381(f) indicates specific dental conditions that will not be considered service-connected for treatment purposes:

(1) Calculus;

(2) Acute periodontal disease;

(3) Third molars, unless disease or pathology of the tooth developed after 180 days or more of active service, or was due to combat or in-service trauma; and

(4) Impacted or malposed teeth, and other developmental defects, unless disease or pathology of these teeth developed after 180 days or more of active service.

Finally, 38 C.F.R. § 3.381(g) provides that teeth extracted because of chronic periodontal disease will be service-connected only if they were extracted after 180 days or more of active service.

Outpatient dental treatment may be authorized by the Chief, Dental Service, for beneficiaries defined in 38 U.S.C. 1712(b) and 38 CFR 17.93 to the extent prescribed and in accordance with the applicable classification and provisions. 

(a) Class I.  Those having a service-connected compensable dental disability or condition, may be authorized any dental treatment indicated as reasonably necessary to maintain oral health and masticatory function.  There is no time limitation for making application for treatment and no restriction as to the number of repeat episodes of treatment. 

(b) Class II. (2)(i) Those having a service-connected noncompensable dental condition or disability shown to have been in existence at time of discharge or release from active service, which took place before October 1, 1981, may be authorized any treatment indicated as reasonably necessary for the one-time correction of the service-connected noncompensable condition, but only if: (A) They were discharged or released, under conditions other than dishonorable, from a period of active military, naval or air service of not less than 180 days. (B) Application for treatment is made within one year after such discharge or release. (C) Department of Veterans Affairs dental examination is completed within 14 months after discharge or release, unless delayed through no fault of the veteran. (ii) Those veterans discharged from their final period of service before August 13, 1981, who had reentered active military service within one year from the date of a prior discharge or release, may apply for treatment of service-connected noncompensable dental conditions relating to any such prior periods of service within one year of their final discharge or release. (iii) If a disqualifying discharge or release has been corrected by competent authority, application may be made within one year after the date of correction. 

(c) Class II (a).  Those having a service-connected noncompensable dental condition or disability adjudicated as resulting from combat wounds or service trauma may be authorized any treatment indicated as reasonably necessary for the correction of such service-connected noncompensable condition or disability.

(d) Class II(b). Those having a service-connected noncompensable dental condition or disability and who had been detained or interned as prisoners of war for a period of less than 90 days may be authorized any treatment as reasonably necessary for the correction of such service-connected dental condition or disability. 

(e) Class II(c).  Those who were prisoners of war for 90 days or more, as determined by the concerned military service department, may be authorized any needed dental treatment. 

(f) Any veteran who had made prior application for and received dental treatment from the Department of Veterans Affairs for noncompensable dental conditions, but was denied replacement of missing teeth which were lost during any period of service prior to his/her last period of service may be authorized such previously denied benefits under the following conditions: (1) Application for such retroactive benefits is made within one year of April 5, 1983. (2) Existing Department of Veterans Affairs records reflect the prior denial of the claim. All Class IIR (Retroactive) treatment authorized will be completed on a fee basis status. 

(g) Class III.  Those having a dental condition professionally determined to be aggravating disability from an associated service-connected condition or disability may be authorized dental treatment for only those dental conditions which, in sound professional judgment, are having a direct and material detrimental effect upon the associated basic condition or disability. 

(h) Class IV.  Those whose service-connected disabilities are rated at 100% by schedular evaluation or who are entitled to the 100% rate by reason of individual unemployability may be authorized any needed dental treatment. 

(i) Class V.  A veteran who is participating in a rehabilitation program under 38 U.S.C. chapter 31 may be authorized such dental services as are professionally determined necessary for any of the reasons enumerated in §17.47(g). 

(j) Class VI. Any veterans scheduled for admission or otherwise receiving care and services under chapter 17 of 38 U.S.C. may receive outpatient dental care which is medically necessary, i.e., is for dental condition clinically determined to be complicating a medical condition currently under treatment. 38 C.F.R. § 17.161 (2014).

For veterans discharged before October 1, 1981, the regulations require the veteran to apply for VA dental treatment within one year of discharge from the service.  38 C.F.R. § 17.161(b)(2i)(B) (2014).  The Veteran was discharged from service in September 1971, and the claims folder does not contain an application for VA dental treatment dated within one year of separation.  The present claim was submitted in April 2009.  Therefore, the Veteran did not make application for treatment within the required time period, and service connection for treatment purposes on this basis must be denied.

In addition, the Veteran does not have a compensable service-connected dental disability, does not have a service-connected disability that is being aggravated by a dental condition, is not participating in a VA rehabilitation program, and is not scheduled for admission to a hospital with a dental condition which is clinically determined to be complicating a medical condition currently under treatment.  Likewise, the Veteran is not a former prisoner of war and is not claiming that a dental condition resulted from a combat wound or other service trauma as would entitle him to one time outpatient dental care.  See 38 C.F.R. § 17.161 (2014).

Given the foregoing, there is no basis for an award of service connection for treatment purposes.  Accordingly, this aspect of the appeal must be denied.

III.  Entitlement to Compensation under 38 U.S.C.A. § 1151

The Veteran is seeking compensation under 38 U.S.C.A. § 1151 for bilateral cataracts, macular degeneration, and medical radiation injuries as a result of hyperbaric chamber treatment.  

Pursuant to 38 U.S.C. § 1151, a Veteran may be compensated for a "qualifying additional disability" that was not the result of the Veteran's willful misconduct and that is actually and proximately caused by VA hospital care, medical or surgical treatment, or examination furnished by VA.  38 U.S.C. § 1151(a) (West 2002 & Supp. 2013); 38 C.F.R § 3.361 (2014).  To determine whether a Veteran has an additional disability, VA compares the Veteran's condition immediately before the beginning of the medical or surgical treatment upon which the claim is based to the Veteran's condition after such treatment.  38 C.F.R § 3.361(b).  A "qualifying additional disability" is actually caused by VA care, treatment, or examination when the VA care, treatment or examination "resulted" in the additional disability.  38 C.F.R § 3.361(c)(1).  When an additional disability is caused by a Veteran's failure to properly follow medical instructions, such a disability will not be considered to have been caused by VA hospital care or medical treatment.  38 C.F.R § 3.361(c)(3).

A "qualifying additional disability" is proximately caused by VA medical care, treatment, or examination when the disability results either from the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the medical treatment; or from "an event" that is "not reasonably foreseeable."  38 U.S.C. § 1151(a); 38 C.F.R § 3.361(d)(1).  To establish that the proximate cause of a disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, the claimant must show that either (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (2) VA furnished the care, treatment, or examination without the Veteran's informed consent.  38 C.F.R § 3.361(d)(1).  Alternatively, to establish that the proximate cause of a disability was an event that was not reasonably foreseeable, the evidence must demonstrate that a reasonable health care provider could not have foreseen the disability.  The event does not have to be "completely unforeseeable or unimaginable," but it must "be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided."  38 C.F.R § 3.361(d)(1).

At July 2006 VA treatment the Veteran complained of an area on his back that had been painful for several days, and he denied any direct trauma.  Private dermatology treatment records from August 2006 indicate that the Veteran felt that he got a spider bite on his back two months before.  There was a patch of ulcerated skin on the back.

A private physician, who treated the Veteran under authorization from VA, wrote in November 2006 that the Veteran had hyperbaric oxygen treatment due to radiation necrosis of the back.  He had a skin ulcer on his back that was an area of radiation necrosis.  The etiology was not clear, and the only effective treatment was excision and a skin graft.  Other treatments had failed in the past two years, and the physician felt that the Veteran should undergo pre-operative and post-operative hyperbaric oxygen treatment.  This was a well-established regiment for helping irradiated tissue heal after surgery.  The treatment was stopped due to difficulty in equalizing the pressure in the right ear.  

On review of the evidence above, the Board notes that a claim for compensation under 38 U.S.C.A. § 1151 must, as a threshold matter, be based on treatment "provided by VA," which is further defined as services that were either provided by a VA employee or performed in a VA facility.  In this case, the private physician is shown to be a physician who is contracted by VA to perform clinical services; he is accordingly not a "VA employee" as defined by 38 C.F.R. § 3.361(e)(1).  Similarly, Lewis-Gale Medical Center, where the private treatment was performed in November 2006, is not facility over which VA has direct jurisdiction and thus is not a "VA facility" within the clear meaning of 38 C.F.R. § 3.361(e)(2).  In that regard, the Board notes that fee basis authorization was granted for the treatment at Lewis-Gale Medical Center under the provisions of 38 U.S.C.A. § 1703, but 38 C.F.R. § 3.361(f) specifically provides that providing service under 38 U.S.C.A. § 1703 does not constitute a "VA facility."

To the extent that the Veteran is claiming compensation under 38 U.S.C.A. § 1151 for the treatment from Lewis-Gale Medical Center, the Board acknowledges that the Veteran may well have misunderstood that approval of treatment at Lewis-Gale Medical Center by the VA indicated that VA was actually taking proprietorship of the treatment.  Thus, he seems to be asserting that he is entitled to compensation under 38 U.S.C.A. § 1151 on an equitable basis.  While the Board is sympathetic toward the Veteran, the Board is bound by law, and its decision is dictated by the relevant statutes and regulations. Moreover, the Board is without authority to grant benefits simply because it might perceive such a grant to be equitable.  See 38 U.S.C.A. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994).  The Board also observes that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress."  Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992).  Therefore, to the extent that the Veteran is claiming compensation under 38 U.S.C.A. § 1151 due to treatment at Lewis-Gale Medical Center, the claim must be denied.

The Veteran also received VA treatment for the ulceration on his back, as discussed above.  September 2006 VA optometry treatment records indicate that the Veteran had cataracts.  The Board therefore notes that cataracts predated any hyperbaric oxygen treatment.  There is also no evidence of record that macular degeneration or a medical radiation injury was caused by VA treatment for the ulceration on the back.  The evidence of record does not show that the Veteran experienced cataracts, macular degeneration or a medical radiation injury as the result of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault by VA medical personnel, or that they were due to an event not reasonably foreseeable in furnishing the Veteran's medical treatment.  

While the Veteran has made statements to the effect that his cataracts, macular degeneration, and a medical radiation injury were caused by VA treatment, he is not competent to make such a determination.  His statements on etiology are therefore not afforded probative value.  See Jandreau, 492 F.3d at 1376-77 (Fed. Cir. 2007); citing Buchanan, 451 F.3d at 1331.

Based on the foregoing, the Board finds that entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for cataracts, macular degeneration, and a medical radiation injury is not warranted.  Accordingly, reasonable doubt does not apply, and the Veteran's appeal of the issue is denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-57.


ORDER

Service connection for a chronic respiratory disorder, including asthma, to include as due to asbestos exposure, is denied.

Service connection for a back disability, to include scoliosis, is denied.

Service Connection for a hip disability is denied.

Service connection for a dental disability, claimed as tooth removal due to a faulty bridge, is denied.

Compensation under the provisions of 38 U.S.C.A. § 1151 for cataracts, macular degeneration, and a medical radiation injury is denied.



____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs