Citation Nr: 1639334 Decision Date: 09/30/16 Archive Date: 10/13/16 DOCKET NO. 13-21 248 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a hernia. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a dental disability, for compensation purposes. 3. Entitlement to service connection for a hernia. 4. Entitlement to service connection for a low back disability, to include multiple back strains. 5. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 6. Entitlement to service connection for tinnitus. 7. Entitlement to service connection for a dental disability to include bruxism and temporomandibular joint disorder, for compensation purposes. REPRESENTATION Appellant represented by: Robert C. Brown, Jr., Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael Sanford, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1990 to October 1990, from January 1993 to June 1993 and from March 2003 to October 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2012 and March 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. Jurisdiction was subsequently transferred to the RO in Waco, Texas. In July 2016, the Veteran testified before the undersigned Veterans Law Judge via live videoconference. A transcript of that proceeding is of record. The Board has expanded the issue of service connection for PTSD to include all acquired psychiatric disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The RO has characterized the claim for service connection for scoliosis as requiring new and material evidence to reopen. See April 2012 Rating Decision. This is because service connection for scoliosis was denied by the RO in an unappealed October 2004 rating decision. The Veteran, however, claimed service connection for a back disability, not specifically scoliosis, is warranted. See March 2011 Claim. The evidence of record does not refect a current diagnosis of scoliosis, but rather a current diagnosis of multiple back strains. See October 2013 Private Medical Opinion. As the current diagnosis differs from that considered in the previous final denial, the Board has construed the current appeal as a new claim rather than a petition to reopen the previous claim of service connection for scoliosis. See Boggs v. Peake, 520 F.3d 1330, 1336 (Fed. Cir. 2008) (claims that were based upon distinctly diagnosed diseases or injuries should be considered distinct claims for the purposes of 38 U.S.C.A. § 7104 (b)); Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). A claim of service connection for a dental disability is also a claim for VA outpatient dental treatment under 38 C.F.R. § 3.381 (2015). Mays v. Brown, 5 Vet. App. 302 (1993). In dental claims, the RO adjudicates the claim of service connection for compensation benefits and the VA Medical Center (VAMC) adjudicates the claim for outpatient treatment. As this matter stems from an adverse determination by the RO, the appeal is limited to the issue of service connection for a dental disability for the purpose of compensation. The claim of service connection for a dental disorder for the purpose of obtaining VA outpatient dental treatment is referred to the Agency of Original Jurisdiction (AOJ) for additional referral to the appropriate VAMC. See 38 C.F.R. §§ 17.161, 19.9(b) (2015). The issue of entitlement to a total disability rating due to individual unemployability (TDIU) has been raised by the record in a July 2016 claim, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action, to include informing the Veteran and his representative that a claim for benefits must be submitted on the application form prescribed by the Secretary of VA and providing such forms. 38 C.F.R. §§ 3.150(a) (providing for furnishing of appropriate application form upon request for VA benefits);19.9(b) (2015). The reopened issue of entitlement to service connection for a dental disability, for compensation purposes, is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. Evidence received by VA since an unappealed October 2004 rating decision that denied service connection for a dental disability and a hernia pertains to the bases for the prior denials and raises the reasonable possibility of substantiating the claims. 2. The evidence is at least evenly balanced as to whether the Veteran's umbilical hernia is related to active military service. 3. The evidence is at least evenly balanced as to whether the Veteran's multiple back strains are related to active military service. 4. The evidence is at least evenly balanced as to whether the Veteran has an acquired psychiatric disorder, including PTSD, anxiety disorder, and depressive disorder, that is related to an in-service stressor or event. 5. The evidence is at least evenly balanced as to whether the Veteran's tinnitus is related to active military service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen claims of entitlement to service connection for a dental disability and a hernia. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. §§ 3.104, 3.156 (2015). 2. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for an umbilical hernia are met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 3. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for multiple back strains are met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 4. The criteria for service connection for an acquired psychiatric disorder, including PTSD with depressive disorder and anxiety disorder, are met. 38 U.S.C.A. §§ 105, 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.301, 3.303, 3.304 (2015). 5. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for tinnitus are met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist To the extent the actions taken herein below are favorable to the Veteran and considered a full grant of benefits requested with respect to all of the issues decided herein, further discussion of the VCAA is not necessary at this time. Merits I. New and Material Evidence An October 2004 rating decision denied service connection for a dental disability and a post-operative ventral hernia. The Veteran filed a timely notice of disagreement regarding that decision in November 2004 and a statement of the case was issued in October 2006. However, the Veteran failed to perfect an appeal of the October 2004 rating decision by filing a substantive appeal within sixty days of the issuance of the statement of the case. Thus, the October 2004 rating decision became final. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. New evidence is defined as existing evidence not previously submitted to the VA, and material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156 (a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. In the October 2006 statement of the case, the AOJ denied service connection for both disabilities because there was no evidence that any of the disabilities were incurred in or otherwise related to service. With regards to the claims for service connection for a hernia, the Veteran has submitted an October 2013 medical opinion from Dr. J.E., M.D. relating that disability to service. With regards to the claim for service connection for a dental disability, the Veteran provided testimony at her Board hearing regarding her current dental disabilities and her in-service experiences. Thus, reopening of the claims is warranted. II. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish service connection, a Veteran must show: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A. Hernia The evidence of record reveals a diagnosis of a repaired umbilical hernia. See October 2013 Private Medical Opinion. Service treatment records are negative for any hernias during service. The Veteran reported experiencing hernia pain while in the Reserves, at which time she was treated. See Board Hearing Transcript (Tr.) at 19. The Veteran also testified to lifting patients and equipment in service, as part of her duties as a medic. See id. The Board finds the Veteran competent to speak to those in-service experiences and also finds her credible as those duties are consistent with her service as a medic. Regarding a nexus, Dr. J.E., M.D., provided an opinion in October 2013. He explained that the Veteran developed an umbilical hernia and underwent surgery in 2000. He explained that the repetitive lifting of patients and equipment caused straining of the abdominal wall, which caused subsequent protruding out of an umbilical hernia. Dr. J.E.'s opinion is uncontroverted. Indeed, while the Veteran was afforded a VA examination in September 2004, and the examiner noted a hernia and a surgery to repair such, the examiner did not offer an opinion regarding the etiology of such. Accordingly, the Board finds that the evidence is at least in equipoise as to whether the Veteran's diagnosed repaired umbilical hernia is related to her period of active military service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for a repaired umbilical hernia is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. B. Low Back Disability The record reveals a diagnosis of multiple back strains. See October 2013 Private Medical Opinion. There are no other current low back disability diagnoses of record. The Veteran's service treatment records do not reveal any low back injuries during service. However, the Veteran reported that she began having low back pain during service. See Board Hearing Tr. at 25-26. She also reported that, as a medic, she just took medication on her own to alleviate the pain. See id. She also explained that she had several instances of low back pain in service while lifting patients and equipment. See id. The Veteran is competent to attest to those events and the Board finds her assertions credible as there is no evidence to contradict the Veteran's statements. Regarding nexus, Dr. J.E. explained that the Veteran had many instances of straining her back while lifting things in service. Dr. J.E. explained that there is a causal relationship between the Veteran's diagnosed multiple back strains and service. He noted that strains in service caused weakening of the iliolumbar and sacroiliac ligaments and beginning traumatic arthritis of the Veteran's low back. The opinion of Dr. J.E. is uncontroverted. There is no evidence counter to the opinion of Dr. J.E. Accordingly, the Board finds that the evidence is at least in equipoise as to whether the Veteran's diagnosed multiple back strains are related to her period of active military service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for multiple back strains is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. C. Psychiatric Disorder Service connection for PTSD specifically requires medical evidence diagnosing this disorder based on examination findings and in accordance with the DSM-V (where, as here, certification was after August 4, 2014); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. §§ 3.304(f), 4.125(a). If a stressor claimed by a veteran is related to the veteran's fear of hostile military activity, and a VA psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor, as long as the claimed stressor is consistent with the places, types, and circumstances of the veteran's service and there is no clear and convincing evidence to the contrary. 38 C.F.R. § 3.304(f)(3). "Fear of hostile military activity" is defined to mean that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. An example of such an event or circumstance is incoming rocket fire. The Veteran has reported stressors related to stabilizing injured soldiers, as part of her duties as a medic. The Veteran's Form DD-214 for her period of service from March 2003 to October 2003 notes her military occupation specialty (MOS) in the medical service. A December 2003 enlisted performance report notes the Veteran's duties as a medical services journeyman involved providing medical services to patients and that upon deployed duty she served in the emergency room. The Veteran's reports of treating injured soldiers are credible and corroborated by the evidence of record. The Veteran was afforded a VA examination in June 2012. There, the examiner declined to diagnose the Veteran with PTSD under the criteria of the DSM-IV. In concluding so, the examiner explained that the Veteran did not meet any of the diagnostic criteria of the DSM-IV for a diagnosis of PTSD. The examiner, however, provided a diagnosis of major depressive disorder, recurrent, in full remission. The examiner offered no opinion as to the etiology of any major depressive disorder. The examiner's decision to not diagnose the Veteran with PTSD under the DSM-IV, however, is not negative evidence against the Veteran. Indeed, as discussed above, for cases such as this, that were certified to the Board after August 4, 2014, the DSM-V, not the DSM-IV, applies. To that end, the Veteran was diagnosed with PTSD by Dr. G.R., Ph.D. in July 2013. In his lengthy and detailed examination report, Dr. G.R. discussed the Veteran's experiences in service as a medic. He explained that the Veteran witnessed injured service members during her service as a medic. He also explained that the Veteran received hazard pay and was considered a front line unit. Dr. G.R. discussed the Veteran's fear of suicide bombers, small arms fire and gas attacks. While Dr. G.R. did not offer an explicit etiological opinion, the examination report reveals that the Veteran's PTSD diagnosis was related to her military service. See Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Further, Dr. J.E., after reviewing Dr. G.R.'s report, concluded that PTSD was related to service. He stated that the Veteran was exposed to may traumatic events in service, given her duties as a medic. He explained that this caused significant acute changes in the neurotransmitters in her brain and has continued on with resultant irritability, depression and PTSD. The Board finds these opinions probative. Indeed, both Dr. J.E. and Dr. G.R. offered detailed findings and explained those findings and Dr. J.E. offered a clear opinion supported by a cogent rationale. As the June 2012 VA examiner declined to diagnose the Veteran with PTSD, no etiological opinion was provided by the examiner. Thus, the opinions of Dr. J.E. and Dr. G.R. are uncontroverted with respect to etiology. Further, Dr. G.R. noted that depression not otherwise specified (NOS) and anxiety NOS were due to PTSD. These findings are also uncontroverted. Indeed, while June 2012 VA examiner diagnosed the Veteran with major depressive disorder, the examiner offered no opinion as to the etiology of that disability. Accordingly, the Board finds that the evidence is at least in equipoise as to whether the Veteran's diagnosed PTSD, depression NOS and anxiety NOS are related to an in-service stressor. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression NOS and anxiety NOS, is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. D. Tinnitus The Veteran has been diagnosed with tinnitus. See August 2013 Opinion of Dr. L.I., Au.D. The Veteran reported that she was a flight medic and experienced loud noise during flights. See Board Hearing Tr. at 14. She additionally noted that following missions, she would notice ringing in her ears. See id. The Board finds these statements credible as they are consistent with the Veteran's duties in service and the Board has no reason to doubt the credibility of such statements. Regarding nexus, Dr. L.I. opined that it was at least as likely as not that tinnitus was related to the Veteran's exposure to hazardous noise in service. As rationale, the examiner explained that recurrent noise from weapons fire and aircraft has been shown to result in the development of tinnitus. As Dr. L.I. offered a clear opinion supported by a cogent rationale, the Board finds the opinion probative. An April 2013 VA examiner opined that the Veteran's tinnitus is a symptom of her hearing loss, which the examiner concluded was not related to service. However, the examiner did not consider the Veteran's credible and competent statements that ringing in the ears during service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 n. 1 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). Thus, that opinion is of limited probative value as the examiner did not consider those statements regarding the onset of ringing in the ears. Accordingly, the Board finds that the evidence is at least in equipoise as to whether the Veteran's tinnitus is related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for tinnitus is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER The application to reopen the claim for service connection for a hernia is granted. The application to reopen the claim for service connection for a dental disability, for compensation purposes, is granted. Service connection for a repaired umbilical hernia is granted. Service connection for multiple back strains is granted. Service connection for an acquired psychiatric disorder, to include PTSD, depression NOS, and anxiety NOS, is granted. Service connection for tinnitus is granted. REMAND The Board notes that compensation is only available for certain types of dental and oral conditions, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla. See 38 C.F.R. § 4.150 (setting for the schedule of ratings for dental and oral conditions). Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not compensable disabilities, but may be considered service-connected solely for the purpose of establishing eligibility outpatient dental treatment purposes. 38 U.S.C.A. § 1712; 38 C.F.R. §§ 3.381, 4.150. At the Veteran's Board hearing, she testified that he has been diagnosed with bruxism and temporomandibular joint disorder (TMJ). See Board Hearing Tr. at 32. She has also contended that her dental disability is related to stress-or her now service-connected PTSD. See id at 38. To date, the Veteran has not been afforded a VA examination to determine the nature and etiology of any dental disability for which compensation is available. In light of the above, the Board finds that a VA examination is required to fulfill the duty to assist. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Further, the Board notes that, on remand, the Veteran should be afforded notice of how to substantiate a claim for service connection on a secondary basis. Accordingly, the claim remaining on appeal is REMANDED for the following action: 1. Send the Veteran a notice letter which advises her of the criteria needed to substantiate her claim for service connection for a dental disability, as secondary to a service-connected disability. 2. Schedule a VA examination to assess the etiology of any mandibular disorder, to specifically include bruxism, TMJ, and any associated residuals thereof. The Veteran's VA claims folder should be made available to the examiner for review in conjunction with the examination. The examiner should address the following: a) Is it at least as likely as not (50 percent or greater) that any current mandibular disorder, to include bruxism and TMJ, had its onset in service, or is otherwise etiologically-related to service? b) Is it at least as likely as not (50 percent or greater) that any current mandibular disorder, to include bruxism and TMJ, was caused by the Veteran's service-connected psychiatric disorder? c) Is it at least as likely as not (50 percent or greater) that any current mandibular disorder, to include bruxism and TMJ, was aggravated (i.e. permanently made worse) by the Veteran's service-connected psychiatric disorder? A complete rationale should accompany any opinion provided. 3. If any benefit sought on appeal remains denied, furnish the Veteran and her representative a SSOC and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 2014). ______________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs