Citation Nr: 1751569 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 12-02 744 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a dental disability, claimed as due to trauma. 2. Entitlement to service connection for a neuroma of the left foot, claimed as a left foot, second toe condition. 3. Entitlement to service connection for a left elbow condition. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD S. Owen, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1972 to November 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied service connection for left elbow, dental, and left foot, second toe disabilities. The Veteran filed a timely notice of disagreement (NOD) in June 2011. In October 2014, the Board remanded the case so that the Veteran could be afforded a hearing. The Veteran was scheduled for a Board hearing in July 2017 and the notified of this date by letters dated in June and July 2017. However, the Veteran did not show up for this hearing. As the Veteran has not offered a statement of good cause as to why he missed the hearing, the Board will proceed as if the hearing request had been withdrawn. 38 C.F.R. § 20.702(d). This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this case should take into consideration the existence of this electronic record. FINDING OF FACT 1. The Veteran does not have a current dental disability for VA compensation purposes. 2. The Veteran is in receipt of a 100 percent rating for schizophrenia. CONCLUSIONS OF LAW 1. The criteria for service connection for a dental disability for compensation purposes have not been met. 38 U.S.C.A. §§ 1110, 1131, 1712, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.150 (2016). 2. The criteria for class IV VA outpatient dental treatment are met. 38 U.S.C.A. § 1712 (West 2014); 38 C.F.R. § 17.161(h) (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5103, 5013A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of the claim at issue by notice letter dated in March 2010. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The VCAA also provides that VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R § 3.159(c). Here, the Veteran's service records, VA records, and Social Security Administration records have been obtained and associated with the claims file. The record shows that the Veteran has not been afforded a VA compensation and pension medical examination in connection with the dental disability claim. The Board finds that such an examination or a medical opinion is not necessary in this case. As will be discussed in greater detail below, the evidence of record is sufficient in order to make a proper determination in this case. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and arguments. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran in substantiating this claim. Service Connection Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of 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). The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of a disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1154(a) (West 2014); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016). Analysis Dental condition For VA compensation purposes, treatable carious teeth, replaceable missing teeth, dental alveolar abscesses, and periodontal disease are not considered disabilities. See 38 C.F.R. § 3.381(b) (2016). Instead, service connection is permissible for loss of teeth only when due to loss of substance of the body of the maxilla or mandible due to trauma or disease such as osteomyelitis. See 38 C.F.R. § 4.150 (2016); see also Simmington v. West, 11 Vet. App. 41 (1998). VA's General Counsel has held that dental treatment of teeth, even extractions, during service does not constitute dental trauma. See VAOPGCPREC 5-97. To establish entitlement to service connection for loss of a tooth, the Veteran must have sustained a combat wound or other in-service trauma. 38 U.S.C.A. § 1712; 38 C.F.R. § 3.381(b). Specifically, the law provides classes of eligibility for VA dental treatment, defining the circumstances under which treatment may be authorized. These are designated Classes I, II, II(a), II(b), II(c), IIR, III, IV, V, and VI. 38 C.F.R. § 17.161. They include treatment for veterans who have a compensable service-connected dental disability or condition (Class I eligibility); one-time treatment for veterans having a noncompensable service-connected dental disability or condition (Class II eligibility); those having a noncompensable service-connected dental disability or condition adjudicated as resulting from combat wounds or other service trauma (Class II(a) eligibility); treatment for certain homeless and other enrolled veterans eligible for a one-time course of dental care under 38 U.S.C.A. § 2062 (Class II(b) eligibility); treatment for veterans who were detained as a prisoner of war (Class II(c) eligibility); treatment for veterans who made prior applications for and received dental treatment from VA for noncompensable dental conditions, but were denied replacement of missing teeth that were lost during any period of service prior to his or her last period of service (Class IIR (Retroactive) eligibility); treatment for veterans having a dental condition professionally determined to be aggravating disability from an associated service-connected condition or disability (Class III eligibility); treatment for veterans whose service-connected disabilities are rated at 100 percent by schedular rating or who are entitled to the 100 percent rating by reason of individual unemployability (Class IV eligibility); treatment for veterans who participate in a rehabilitation program under 38 U.S.C.A. chapter 31 (Class V eligibility); and treatment for veterans who are scheduled for admission or who are otherwise receiving care and services under chapter 17 of 38 U.S.C.A. and have a dental condition that is clinically determined to be complicating a medical condition currently under treatment (Class VI eligibility). 38 U.S.C.A. § 1712 (West 2014); 38 C.F.R. § 17.161. The significance of finding that a dental condition is due to in-service trauma is that a Veteran will be eligible for VA outpatient dental treatment, without being subject to the usual restrictions of a timely application and one-time treatment. 38 C.F.R. § 17.161(c). The Veteran contends that service connection is warranted for a dental disability due to trauma. Specifically, the Veteran states that while in service, he was hit in the mouth with a helmet and that this trauma is now causing him to lose all of his teeth. See November 2011 VA Form 9 (Appeal to Board of Veterans' Appeals). On the Veteran's November 1972 entrance examination, he denied severe tooth or gum trouble. On objective examination, his mouth and throat were normal and the examiner marked acceptable under remarks and additional dental defects and diseases. On the Veteran's October 1977 separation examination, he denied severe tooth or gum trouble. On objective examination, his mouth and throat were normal and no dental defects were noted. The Veteran's service treatment records, including a review of his in-service dental records, are silent for any trauma to his mouth or teeth. His in-service dental records reflect that during service, his #16 tooth was extracted, his #8 tooth was crowned, and he had elective surgery on teeth #1, 17, and 32. On an August 1977 dental evaluation form, the Veteran denied having prolonged bleeding from injury or tooth extraction. The Veteran's post-service treatment records are silent with respect to dental complaints until June 2003, in which the Veteran complained that he had trouble with his teeth and he was given a referral to the dentist. See June 2003 Social Security Administration medical records. An August 2010 VA dental examination revealed that the Veteran was missing teeth #4, 6, 9, 16, and 17, with caries in teeth 1, 10, and 12, and a root canal on tooth #8. He was diagnosed with dental caries extending into dentine but no abnormal tooth mobility was found. After a careful review of the record, the Board has determined, based upon the medical and satisfactory lay evidence set forth above, that the Veteran's claim for service connection for a dental disability due to trauma, for VA compensation purposes, is not warranted. In this regard, the Board observes that the Veteran does not have a current dental disability involving loss of substance of body of maxilla or mandible, or of the soft tissue surrounding that region and he does not have a dental disability resulting from an in-service dental trauma. Furthermore, the record does not show, nor does the Veteran assert, that he had a disease such as osteomyelitis that would cause loss of teeth due to loss of substance of the body of the maxilla or mandible. As mentioned above, there is no evidence in the service treatment records that the Veteran experienced any dental trauma. The service treatment records document dental extraction of tooth #16, but, as noted above, this does not constitute dental trauma. After service, medical records do not indicate any dental treatment or findings related to a dental disability. Moreover, no medical professional has attributed any current dental disability to any traumatic incident of the Veteran's military service. In short, the Veteran simply does not have a dental disability that can be service-connected for compensation purposes. The Board acknowledges the Veteran's contention that his current dental disability constitutes a disability for compensation purposes and was caused by military events, including being struck in the mouth with a helmet in service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is not competent to specify that any of the alleged incidents in service caused a dental disability based on his reported symptoms, as these are medical determinations which he is not competent to make. See id. at 1377 (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this case, the Veteran claims that he should receive VA dental treatment because he experienced in service trauma which resulted in loss of such teeth. No in-service dental trauma is shown by the record and as such, he does not meet the requirements for Class II(a) eligibility; however, the Veteran is rated as 100 percent disabled for service-connected schizophrenia. Therefore, he meets the requirements for Class IV eligibility for VA dental treatment. ORDER Service connection for a dental disability due to trauma for VA compensation purposes is denied. Entitlement to Class IV VA outpatient dental treatment is granted. REMAND Left foot neuroma The Veteran contends that service connection is warranted for an injury to the second toe of his left foot, diagnosed in service as a neuroma. On his November 1972 entrance examination, the Veteran denied foot trouble and the examiner found his feet normal on objective examination. The Veteran's service treatment records reflect that in March 1974, the Veteran reported with complaints of a growth on the plantar surface of the second toe of his left foot. The growth was found to be very tender to touch. The Veteran reported having had a cut from glass in the area about eight years prior, around age 9, but that he had had no pain until about one week prior. The growth was excised and a biopsy revealed a neuroma. In October 1975, the Veteran again reported with complaints of a growth on the bottom side of the second toe of his left foot. The Veteran was diagnosed with verrucae on the right side of the second metatarsal and referred to the wart clinic. On his October 1977 separation examination, the Veteran reported having had foot trouble but the examiner found his feet normal on objective examination. Post-service treatment records are silent with regards to complaints of or treatment for a left foot condition. The Veteran was afforded a VA examination in March 2012. The examiner noted that the Veteran was diagnosed with Morton's neuroma in March 1974 and that the neuroma was subsequently excised. The Veteran reported that his toe hurt a lot in service and that the surgery improved it a lot. The Veteran reported current mild pain in his toe when he walked and that the pain would subside when taking weight off his foot. The examiner found that the Veteran currently had a Morton's neuroma on the second toe of his left foot, with recurring symptoms in the same location as in service. However, the examiner opined that his current condition was less likely than not incurred in or caused by service. The examiner noted that the Veteran complained of a painful spot under his second toe in 1973, but that the pain had been present upon walking for eight years, which predated service. The examiner concluded that since the pain predated service, the Veteran's service did not cause the neuroma. Furthermore, as the excision resulted in improvement in pain, the neuroma was resolved and thus not aggravated by service. The Board finds the March 2012 VA examination's opinion inadequate as it is based on an inaccurate premise. The examiner stated that the Veteran reported pain lasting for eight years in his foot, predating the pain prior to service. However, the Veteran's service treatment records reflect that he reported the pain began one week prior to him seeking treatment for the neuroma. Furthermore, it is not clear that the examiner considered the October 1975 complaints of a growth on his foot and it is unclear whether the Veteran's response that the surgery improved his pain a lot means that the pain completely resolved after excision of the neuroma. Therefore, the Board finds that a remand is warranted for an addendum opinion that addresses the nature and etiology of the Veteran's currently diagnosed Morton's neuroma. Left elbow condition The Veteran contends that service connection is warranted for a left elbow condition. The Veteran denied painful or trick shoulder or elbow on his November 1972 entrance examination and upon objective examination, his upper extremities were found normal. The Veteran's service treatment records reflect that in March 1973, he reported left arm pain lasting for two months and that he did not remember how he injured it. There was joint tenderness above the elbow and the Veteran reported numbness in his fingers and hand and a tingling sensation down his left arm. The Veteran was diagnosed with muscular strain. In October 1973, the Veteran sustained a fracture to his right elbow and he reported that he did not know how he injured it. On his October 1977 separation examination, the Veteran reported that he had a painful or trick shoulder or elbow and swollen or painful joints. On objective examination, the examiner noted the right elbow fracture, but otherwise found the Veteran's upper extremities normal. The Veteran's post-service treatment records are silent with regards to complaints of or treatment for elbow pain until October 2009, when he reported that his elbow affected him. Mental health treatment records reflect that the Veteran reported deliberately injuring his elbow with an iron rake so that he would be hospitalized and possibility discharged, but that he reported he fell. See April 2007 mental health outpatient note. The Veteran also reported beating on himself and that he was seen for an elbow injury and/or elbow fracture but did not say that it was due to hitting himself. See October 2009 mental health note. The Veteran was afforded a VA examination in March 2012. The examiner noted that the Veteran reported fracturing his left elbow in service, but that the Veteran had a medial epicondylar avulsion fracture of the right elbow in 1973. The Veteran reported that his left elbow ached, but that the aches were relieved with stretching. The examiner opined that the Veteran's left elbow was less likely than not incurred in or caused by service, finding that the Veteran has no treatment of complaints of the left elbow following his avulsion fracture. There were no left elbow complaints since military separation or since the Veteran had been seen at the Temple VA. The examiner concluded that the Veteran had a normal left elbow. The Board finds the examiner's opinion inadequate as it is based on an incomplete premise. The examiner did not note the March 1973 left elbow complaint, diagnosed as muscular strain. Therefore, it is not clear whether the examiner considered the in-service left elbow complaint when assessing the Veteran's current complaints of left elbow pain and whether this pain was related to service. Thus, the Board finds that a remand is warranted to obtain a new VA examination and medical opinion as to the nature and etiology of any diagnosed left elbow condition, including whether the condition is due to self-inflicted injuries in service. As the in-service complaints included complaints of numbness and tingling, the examination should address whether the Veteran's current complaints of pain are due to nerve involvement. Accordingly, the case is REMANDED for the following actions: 1. Return the Veteran's claim file to the March 2012 VA examiner for an addendum opinion as to the nature and etiology of the Veteran's currently diagnosed Morton's neuroma. If the examiner is unavailable, the claims file must be provided to an examiner who is similarly qualified to give an opinion. A new examination is only required if deemed necessary by the examiner. The record and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. If a new examination is conducted, the examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with complete explanation in support of such a finding. The examiner must provide an opinion as to: (a) Whether it is at least as likely as not (50 percent or greater possibility) that the Veteran's Morton's neuroma began during active service; or, is related to any incident of service to include the neuroma diagnosed during service; or began within one year after discharge from active service. (b) If the examiner finds that the Veteran's Morton's neuroma did not begin during nor is related to any incident of service, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater possibility) that a preexisting neuroma was aggravated (i.e., permanently worsened beyond the natural progression) by his active service. If the examiner finds that the neuroma was aggravated by active service, then he or she should quantify the degree of aggravation, if possible. Although a complete review of the Veteran's claims file is required, the examiner's attention is drawn the Veteran's service treatment records in which he reported developing pain one week prior to seeking treatment for the in-service neuroma. The examiner is asked to comment on the relationship between the Veteran's foot injury during his youth and whether such injury could cause the neuroma diagnosed during service. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions, based on his or her clinical experience, medical expertise, and established medical principles. If the requested opinion cannot be made without resort to speculation, the examiner must state this and specifically explain why this is so. The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the causal relationship. Less likely weighs against the claim. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed left elbow condition. The claims file must be provided to an examiner who is qualified to give an opinion on the Veteran's left elbow condition. The record and a copy of this remand must be made available to the examiner for review and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must opine as to whether the Veteran's current or previous symptoms of left elbow pain are at least as likely as not (50 percent or greater possibility) attributable to a known diagnosis. If the examiner finds that the Veteran's current or previous symptoms are attributable to a known diagnosis, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater possibility) that the Veteran's diagnosed disability began during active service; or, is related to any incident of service, to include the March 1973 left arm pain and tingling; or began within one year after discharge from active service. The examiner is asked to comment upon the Veteran's in-service complaints of left arm pain, numbness, and tingling, as well as his reports that he self-inflicted injuries to his elbow. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions, based on his or her clinical experience, medical expertise, and established medical principles. If the requested opinion cannot be made without resort to speculation, the examiner must state this and specifically explain why this is so. 3. After completing the above, and any other development as may be indicated, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The appellant has 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 2014). ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs