Citation Nr: 1621037 Decision Date: 05/25/16 Archive Date: 06/02/16 DOCKET NO. 10-05 505 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE 1. Entitlement to a compensable rating for bilateral hearing loss. 2. Entitlement to service connection for a dental disorder for compensation purposes. 3. Entitlement to service connection for a skin disorder, to include as due to an undiagnosed illness or other qualifying chronic disability pursuant to 38 U.S.C.A. § 1117. 4. Entitlement to service connection for headaches, to include as due to an undiagnosed illness or other qualifying chronic disability pursuant to 38 U.S.C.A. § 1117. 5. Entitlement to service connection for a gastrointestinal disorder. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from December 1971 to December 1973 and from February 2005 to June 2006, to include service in Iraq from May 2005 to May 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. As discussed in more detail below, service connection may be awarded for dental conditions for (1) compensation benefits, or (2) outpatient dental treatment purposes. Pursuant to Veterans Benefits Administration (VBA) Fast Letter 12-18 (July 10, 2012), claims for outpatient dental treatment submitted to VBA should be referred to the Veterans Health Administration (VHA) for preparation of a dental treatment rating. See also 38 C.F.R. § 3.381 (2015). In the present case, the record reflects that the Veteran has raised the issue of service connection for outpatient dental treatment purposes. See also Mays v. Brown, 5 Vet. App. 302 (1993) (any claim for service connection for a dental condition is also a claim for VA outpatient dental treatment). Review of the record reveals, however, that the AOJ (i.e., VBA) has only adjudicated the issue of entitlement to service connection for a dental disorder for compensation purposes. As there is no indication that any claim for outpatient dental treatment has yet been considered and/or referred to VHA, and because this matter is not currently before the Board, it is referred to the AOJ (which, in this case, is VHA) for appropriate action. The Board's decision as to the claim for a dental disorder for compensation purposes is detailed below. The remaining claims on appeal area addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran does not have tooth loss resulting from loss of substance of the body of the maxilla or mandible. 2. The Veteran does not have a disability for which service connection for a dental disorder for compensation purposes can be granted. CONCLUSION OF LAW The criteria for service connection for a dental disorder for compensation purposes are not met. 38 U.S.C.A. §§ 1110, 1712, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.381, 4.150, 17.161 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist 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 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). 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); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court of Appeals for Veterans Claims (Court) 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. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. With regard to the claim for service connection for a dental disorder for compensation purposes, a March 2007 letter, sent prior to the unfavorable decision issued August 2007, advised the Veteran of the information and evidence necessary to substantiate his claim for service connection for a dental condition, as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, such letter advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. In addition, neither the Veteran nor his representative has alleged prejudice with respect to notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Relevant to the duty to assist, the Veteran's service treatment records, VA outpatient treatment records, various private treatment records and Social Security Administration (SSA) records have been obtained and considered. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. A March 2007 letter requested that the Veteran provide the names and addresses of all VA and non-VA healthcare providers who treated him for his claimed disabilities. However, the Veteran did not complete an appropriate authorization form to allow VA to obtain any additional records or identify any other VA or non-VA providers. The Board emphasizes that "the duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, the Board finds that VA has satisfied its duty to assist in this regard. The Veteran has also been afforded a VA examination in conjunction with the service connection claim being decided herein, namely the examination conducted in August 2006. Moreover, the Board finds that such VA examination and accompanying opinion is adequate to decide the issue decided herein, as they are based on an interview with the Veteran, a review of the record, and appropriate examinations. The conclusions and opinions proffered by the VA examiner is also based upon all of the pertinent evidence of record, to include the statements of the Veteran, and are supported by a complete rationale based upon the evidence reviewed. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Moreover, neither the Veteran nor his representative have challenged the adequacy of the examination. See Scott v. McDonald, 789 F.3d 1375 (Fed. Circ. 2015) (it is appropriate for the Board to address only those procedural arguments specifically raised by the Veteran). As such, the Board finds that the opinions proffered by the VA examiner is sufficient to assist VA in deciding the claim for service connection for a dental disorder. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case; at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Service Connection Claim The Veteran generally contends that his current dental problems are the result of service. He has provided no specific argument in support of his contentions. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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). Dental disabilities that 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, 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, and loss of teeth due to the loss of substance of the body of the maxilla or mandible without loss of continuity. 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. Compensation is only available for loss of teeth, where the lost masticatory surface cannot be restored by suitable prosthesis, if such is due to loss of substance of body of maxilla or mandible, but only if such bone loss is due to trauma or osteomyelitis, and not to the loss of the alveolar process as a result of periodontal disease, as such loss is not considered disabling. See 38 C.F.R. § 4.150, Diagnostic Code 9913. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Considering the pertinent evidence in light of the governing legal authority, the Board finds that service connection for a dental disorder for compensation purposes is not warranted. Service medical records show missing teeth numbered 13 and 31. However, service treatment records do not reflect that the Veteran sustained any dental trauma or injury, or noted that bone loss had occurred. An August 2006 VA dental examination report indicates that the Veteran is currently receiving treatment for compromised masticatory function due to many missing posterior upper and lower molars. The examiner noted that the Veteran was scheduled for the replacement of missing posterior molars with upper and lower removable partial dentures. Physical examination revealed multiple missing teeth, to include teeth numbered 1, 2, 3, 12, 13, 14, 15, 16, 17, 19, 24, 28, 29, 31 and 32. The examiner noted that the Veteran was scheduled for replacement of missing teeth with upper and lower removable partial dentures and that there was advanced bone loss on both the upper and lower "removable partial" due to generalized moderate to severe periodontitis. An accompanying X-ray also revealed generalized moderate to severe periodontitis on all remaining teeth as well as localized gingival inflammation with evidence of calculus deposits. A diagnosis of generalized moderate to severe periodontitis was made. The examiner opined that the clinical and radiographic examination showed the most likely cause of teeth loss to be due to generalized moderate to severe periodontitis. Here, there is no competent evidence that the Veteran's current dental disorder is a disability for which VA compensation benefits are payable. The record suggests that the Veteran has missing or lost teeth. However, there is no evidence of any impairment or abnormality of the maxilla, mandible, ramus, palate, or condyloid process, or bone loss that is not attributable to periodontitis. The Veteran has not alleged that he sustained trauma to the mouth or teeth during service or that his current dental problems were not due to combat. Additionally, the Veteran has not alleged, and there is no evidence suggesting, that he was a prisoner of war. See 38 C.F.R. § 3.381(b). To the extent that the Veteran received in-service treatment for periodontal disease, the Board notes that service connection for periodontal disease for compensation purposes is not legally permitted, and as a matter of law this claim must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). To the extent that the Veteran himself may be asserting the presence of a disability for which VA compensation benefits are payable, the Board notes that he is certainly competent to report his own symptoms, or matters within his personal knowledge, such as missing teeth. See Jandreau v. Nicholson, 492 F.3d 1372, and 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, matters of medical diagnosis for disability not capable of lay observation are matters within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran is not shown to be other than a layperson without appropriate medical training and expertise to competently render a diagnosis of a dental condition, or to opine as to the etiology of any such disability, the lay assertions in this regard have no probative value. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). As noted, there was no evidence of any in-service dental trauma which resulted in loss of the mandible or maxilla, nonunion or malunion of the mandible or maxilla, limited temporomandibular motion, loss of the ramus, loss of the condyloid or coronoid processes, loss of the hard palate, or loss of teeth due to the loss of substance of the body of the maxilla or mandible without loss of continuity. See generally, VAOPGCPREC 5-97; 38 C.F.R. § 4.150, Diagnostic Codes 9913-9916. Consequently, there is no basis for entitlement to service connection for a dental disorder for compensation purposes. ORDER Service connection for a dental disorder for compensation purposes is denied. REMAND Although the Board regrets additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. With regards to the Veteran's claim for a compensable rating for bilateral hearing loss, the Board finds that a remand is necessary in order to afford him a contemporaneous VA examination so as to determine the current nature and severity of his bilateral hearing loss. In this regard, he was most recently afforded a VA examination in December 2012, and in a March 2016 Informal Hearing Presentation, the Veteran's representative indicated that his symptoms have increased in severity. Therefore, due to the length of time since the Veteran's last examination, as well as the evidence suggesting that his bilateral hearing loss symptomatology may have increased in severity since the December 2012 examination, a remand is necessary in order to schedule him for an appropriate VA examination in order to assess the current nature and severity of his service-connected bilateral hearing loss. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For below noted reasons, the Board finds that a VA opinion to determine the nature and etiology is required to decide the claims for service connection for a skin disorder and headaches. In addition, the Board finds that further opinion is required to determine the nature and etiology of the Veteran's claimed gastrointestinal disorder. With regards to the Veteran's claimed skin disorder and headaches, he has alleged that these disabilities are the result of his service in Iraq. Service treatment records are negative for complaints, treatments or diagnoses related to any skin disorder but reflect complaints of headaches in December 1972. The Veteran's DD Form-214 reflects that he served in Iraq. Post-service treatment records are negative for findings or diagnoses of a skin disorder and/or headaches. The Veteran has not yet been afforded a VA examination to determine the etiology of his claimed skin disorder and headaches. Therefore, on remand, such an examination with etiology opinions should be obtained. With regards to the Veteran's claimed gastrointestinal disorder, he has alleged that it was the result of his service or his service in Iraq. Specifically, he claims to suffer from frequent heartburn and bad breath as a result of this stomach condition in a September 2007 notice of disagreement. Service treatment records reflect complaints of gastric tenderness in December 1972. Post-service VA treatment records contain a diagnosis of esophageal reflux in June 2007, an assessment of an helicobacter pylori infection in December 2007, and an assessment of diverticulosis in June 2014. An October 2011 VA Gulf War examination provided an etiology opinion as to colonic diverticulosis/colonic polyps and helicobacter pylori infection but did not address the diagnosed esophageal reflux. On remand, an addendum opinion should be obtained that addresses all of the Veteran's diagnosed gastrointestinal disorders. Finally, due to the length of time which will elapse on remand, updated VA treatment records should be obtained in consideration of the Veteran's appeals. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's updated VA treatment records dated from November 2014 to the present. 2. Afford the Veteran a VA audiological examination in order to determine the current nature and severity of his bilateral hearing loss. 3. Afford the Veteran a VA examination in order to determine the current nature and etiology of his claimed skin disorder and headaches. The claims file should be made available to and be reviewed by the examiner. The examiner is asked to furnish an opinion with respect to the following questions: (A) The examiner should note and detail all reported symptoms of a skin disorder and headaches. (B) The examiner should specifically state whether the Veteran's skin itching or other symptoms and/or headaches are attributed to a known clinical diagnosis. The examiner should also specifically state whether the Veteran's unexplained rashes or other dermatological signs or symptoms (such as itching) and/or headaches are attributed to a known clinical diagnosis. (C) If any symptoms of a skin disorder and/or headaches have not been determined to be associated with a known clinical diagnosis, the examiner should indicate whether the Veteran has objective indications of a chronic disability resulting from an undiagnosed illness, as established by history, physical examination, and laboratory tests, that has either (1) existed for six months or more, or (2) exhibited intermittent episodes of improvement and worsening over a six-month period. The examiner should also offer an opinion as to whether it is at least as likely as not that the Veteran's symptoms of a skin disorder and/or headaches represent a "medically unexplained chronic multisymptom illness." (D) For each diagnosed skin disorder and/or headaches, the examiner should render an opinion as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that such disorder is related to the Veteran's service, to include his in-service exposure to environmental hazards coincident with his service in Southwest Asia and/or the complaints of headaches in December 1972. A complete rating should be given for each opinion expressed. 4. Afford the Veteran a VA examination in order to determine the current nature and etiology of his claimed gastrointestinal disorder. The claims file should be made available to and be reviewed by the examiner. The examiner is asked to furnish an opinion with respect to the following questions: (A) Whether it is at least as likely as not (50 percent or greater probability) that the diagnosed gastrointestinal disorder had its onset during service or is otherwise related to such service, to include complaints of gastric tenderness in December 1972. (B) Did a hiatal hernia manifest to a compensable degree within one year of service discharge (i.e. June 2006)? If so, what were the manifestations? The examiner is asked to provide a complete rationale for all opinions and conclusions reached. 5. Readjudicate the claims. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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 2014). ______________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs