Citation Nr: 1751877 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 11-27 645 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for heart disease. 3. Entitlement to service connection for a skin disorder. 4. Entitlement to service connection for a right hand disorder, to include arthritis. 5. Entitlement to service connection for a left hand disorder, to include arthritis. 6. Entitlement to service connection for a right elbow disorder. 7. Entitlement to service connection for hearing loss. 8. Entitlement to service connection for a dental disorder for compensation purposes. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from May 1968 to May 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that a claim for service connection for a dental condition is also considered a claim for VA outpatient dental treatment. Mays v. Brown, 5 Vet. App. 302, 306 (1993). However, in dental claims, the RO adjudicates the claim of service connection and the VA Medical Center (VAMC) adjudicates the claim for outpatient treatment. As this matter stems from an adverse RO determination, the appeal is limited to the issue of entitlement to service connection for a dental disorder for compensation purposes. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in August 2017. A transcript of that hearing is of record. For the reasons addressed in the REMAND portion of the decision below, the Board finds that further development is required regarding the Veteran's claims of service connection for a low back disorder, heart disease, skin disorder, bilateral hand disorder, right elbow disorder, and right ear hearing loss. Accordingly, these claims are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The competent and credible evidence of record reflects it is at least as likely as not the Veteran has a current hearing loss disability of the left ear as a result of his active service. 2. The record reflects the Veteran does not have a dental disorder for which VA compensation may be paid. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for a hearing loss disability of the left ear are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). 2. The criteria for a grant of service connection for compensation purposes for dental disorder are not met. 38 U.S.C.A. § 1712 (West 2014); 38 C.F.R. §§ 3.381, 17.161 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Board notes at the outset that VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). However, in this case, it does not appear the Veteran has identified any deficiency in the notification and assistance he has received regarding the issues adjudicated by this decision, or in the conduct of the August 2017 hearing. Accordingly, the Board need not search for, or address, any such argument. See Scott v. McDonald, 789 F. 3d 1375 (Fed. Cir. 2015). The Board will therefore proceed to the merits of the appeal. The Board also notes that this decision establishes service connection for a hearing loss disability of the left ear. Thus, any deficiency in the duties to notify and assist is moot. Further, the decision finds that service connection for a dental disorder for compensation purposes is precluded based upon the lack of legal entitlement under the uncontested facts of this case. The United States Court of Appeals for Veterans Claims (Court) has held that the duties to notify and assist are not applicable to matters in which the law, and not the evidence, is dispositive. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. 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). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson 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, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Analysis - Hearing Loss 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). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). For the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Further, the Court has indicated that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley, 5 Vet. App. at 160. In this case, the Board notes that the competent medical evidence reflects the Veteran does have a hearing loss disability for the left ear as defined by 38 C.F.R. § 3.385, but not the right ear. Specifically, a July 2010 VA audio examination revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 Average RIGHT 5 10 5 15 20 12.5 LEFT 10 15 15 20 50 25 Speech recognition scores were 96 percent for both ears. In regard to the issue of whether service connection is warranted for the left ear hearing loss disability, the Veteran has contended that he developed hearing loss due to in-service noise exposure, and that he has had recurrent hearing problems since active service. The Board notes that it has been acknowledged that his account of in-service noise exposure is consistent with his military occupational specialty (MOS) of jet engine mechanic. Further, he is competent to describe recurrent hearing problems, even though competent medical testing is required to determine whether there is evidence of a 38 C.F.R. § 3.385 disability of evidence of Hensley hearing loss. The Board also finds his testimony on this matter to be credible, and consistent with the fact that service connection has been established for tinnitus based upon such contentions. The Board further notes that the record indicates threshold shift of his hearing from enlistment and separation. Specifically, audiological evaluation conducted as part of his revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 10 -5 -10 -- -5 -- LEFT 5 0 0 -- 5 -- Thereafter, audiological evaluation conducted as part of his May 1969 separation examination revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 5 5 5 10 10 15 LEFT 5 5 5 5 5 15 Although there was improvement of the right ear at 500 Hertz, the other results either reflect no change or a worsening from the time of enlistment and separation. The Board acknowledges that the July 2010 VA examiner expressed an opinion against the Veteran's hearing loss being etiologically linked to service. However, that opinion appears to be based upon the presumption that the results noted at enlistment where based upon standards set by the American Standards Association (ASA), while those at separation were presumed to have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). However, while the separation examination did contain a notation indicating ISO standards, no such notation appears at enlistment to designate which standards were used at that time. The Board also notes that its current policy is to assume the ASA standards were used for examination conducted prior to January 1, 1967, which is before the enlistment examination in this case. From January 1, 1967, to December 31, 1970, unless indicated otherwise by the record, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran's appeal. Here, the standard most favorable to the Veteran would be assuming the enlistment examination was conducted under ISO-ANSI standard as it supports a finding his hearing worsened during his active service. Moreover, as this contradicts the rationale provided by the July 2010 VA examiner, the Board must find that this opinion is not adequate to support a denial of the claim. In summary, the Veteran has provided competent and credible evidence of recurrent hearing problems that developed during his active service; in-service audiological evaluations indicated a worsening of his hearing during this period; there is competent medical evidence of a current hearing loss disability of the left ear in accord with 38 C.F.R. § 3.385; and the only competent medical evidence against the claim has been deemed to be inadequate. Further, the Board notes that the law mandates resolving all reasonable doubt in favor of the Veteran, to include issues of service origin. The Court noted in Alemany v. Brown, 9 Vet. App. 518 (1996), that in light of the benefit of the doubt provisions of 38 U.S.C.A. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology." For these reasons, the Board finds the competent and credible evidence of record reflects it is at least as likely as not the Veteran has a current hearing loss disability of the left ear as a result of his active service. Therefore, service connection is warranted for this disability. Analysis - Dental Disorder Service connection may be awarded for missing teeth due to dental trauma or bone loss in service. The law and regulations also provide that treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are considered non-disabling conditions and may be considered service-connected solely for the purpose of determining entitlement to VA dental examination or outpatient dental treatment. See 38 U.S.C.A. § 1712; 38 C.F.R. §§ 3.381, 17.161; see also Woodson v. Brown, 8 Vet. App. 352, 354 (1995). However, service connection for compensation purposes is only warranted for certain dental conditions. Specifically, 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, limited temporomandibular motion, loss of the ramus, loss of the condyloid or coronoid processes, loss of the hard palate, loss of teeth due to the loss of substance of the body of the maxilla or mandible and where the lost masticatory surface cannot be restored by suitable prosthesis, when the bone loss is a result of trauma or disease but not the result of periodontal disease. 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. In this case, the record reflects the Veteran does not have a dental disorder for which VA compensation may be paid. For example, a July 2010 VA dental examination noted that his service treatment records noted his mandible midline was skewed to left slightly (congenital malformation); and that he had multiple missing teeth which were replaced by a maxillary removable partial. However, interincisal range was within normal limits with no limitations; and there was no obvious bone loss of mandible or maxilla. Nothing in the other evidence of record, to include the medical treatment records, otherwise indicates he has the type of dental disorder for which service connection may be paid. Thus, there is no legal basis to award service connection for a dental disorder for VA compensation purposes. The Board further notes that even if the Veteran did have a dental disorder for which VA compensation may be paid, his claim of service connection for compensation purposes would still be denied. See Holbrook v. Brown, 8 Vet. App. 91 (1995) (The Board has the fundamental authority to decide a claim in the alternative.). 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). Moreover, the Federal Circuit defined "service trauma" as "an injury or wound produced by an external force during the service member's performance of military duties." Nielson v. Shinseki, 607 F.3d 802, 808 (Fed. Cir. 2010). The definition excluded "the intended result of proper medical treatment." Id; see also 38 C.F.R. § 3.306(b)(1); VAOGCPREC 5-97. Here, a review of the Veteran's service treatment records does reflect dental treatment, but does not reflect any of it was due to service trauma. Moreover, the Veteran himself acknowledged at his August 2017 hearing that he did not have in-service dental trauma. See Transcript pp. 9-10. Granted, he did refer to in-service dental treatment at this hearing, and the Federal Circuit specifically noted in Nielson, "We do not, however, suggest that an unintended result of medical treatment due to military negligence or malpractice could not be a 'service trauma'..." However, there is no evidence of any such negligence or malpractice, nor does the Veteran contend otherwise. Further, the July 2010 VA examiner opined that the Veteran's complaints of partial not fitting and jaw offset was not the result of anything caused in the military; and that he received routine dental care in the service for caries that included extractions but this was not due to any documented dental injury. In short, this competent medical opinion is against a finding of in-service dental trauma, or that the Veteran received improper dental treatment during active duty. ORDER Service connection for a hearing loss disability of the left ear is granted. Service connection for a dental disorder for compensation purposes is denied. REMAND Initially, the Board notes the Veteran has indicated that several of his claimed conditions, including heart disease and skin disorder, is due to exposure to herbicide agents while on active duty and provided details thereof to include at the August 2017 hearing. The Board acknowledges that, under the law, if a veteran was exposed to a herbicide agent during active military, naval, or air service, certain diseases to include ischemic heart disease and skin disorders such as chloracne or other acneform diseases consistent with chloracne, shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. For the purposes of § 3.307, the term herbicide agent means a chemical in a herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). Agent Orange is generally considered a herbicide agent and will be so considered in this decision. The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne and porphyria cutanea tarda shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). The Board notes that there are various legal and procedural provisions for claims based upon exposure to herbicide agents in the Republic of Vietnam, Korea, and Thailand. However, the record does not reflect, nor does the Veteran otherwise contend, he had such service. Rather, his claim of exposure to herbicide agents is based upon his contention that he worked on aircraft which regularly flew into the Republic of Vietnam while stationed in the Philippines. See Transcript, pp. 11, 14. Effective June 19, 2015, VA amended its regulation governing individuals presumed to have been exposed to certain herbicides by expanding the regulation to include an additional group consisting of individuals who performed service in the Air Force or Air Force Reserve under circumstances in which they had regular and repeated contact with C-123 aircraft known to have been used to spray an herbicide agent ("Agent Orange") during the Vietnam era. Specifically, the new regulation states that an individual who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent. For purposes of this paragraph, "regularly and repeatedly operated, maintained or served onboard C-123 aircraft" means that the individual was assigned to an Air Force or Air Force Reserve squadron when the squadron was permanently assigned one of the affected aircraft and the individual had an Air Force Specialty Code (AFSC) indicating duties as a flight, ground maintenance, or medical crew member of such aircraft. 38 C.F.R. § 3.307(a)(6)(v). A review of the Federal Register reveals that some C-123s were used to actually spray herbicide in Vietnam. 80 Fed. Reg. 35,246 (June 19, 2015). For this reason, the presumption of herbicide exposure under 38 C.F.R. § 3.307(a)(6)(v) is limited to contact with C-123 aircraft known to have been used to sprayed an herbicide agent during the Vietnam era. This makes the C-123s a distinct case. VA has also published a list of military personnel who had regular and repeated exposure to contaminated Operation Ranch Hand (ORH) C-123s, used to spray Agent Orange in Vietnam, as flight, maintenance, or medical crew members. See http://www.benefits.va.gov/compensation/docs/AO_C123_AFSpecialityCodesUnits.pdf. Further, that list does include a unit assigned to the Philippines from 1969 to 1970. However, it is not clear from the evidence of record whether the Veteran was assigned to that unit at that time. His DD Form 214 lists over 6 months of foreign and/or sea service, but it does not list where that service occurred. Moreover, it does not appear his service personnel records are associated with the claims folder. Thus, the Board finds that a remand is required in order to obtain such records in order to make an accurate determination as to whether the Veteran is entitled to the benefit of these regulatory provisions. The Board further notes the Veteran has indicated that there may be VA medical records pertinent to this appeal that are not on file. For example, at his August 2017 hearing he reported that he was scheduled to undergo a new audio evaluation through VA within the next week. See Transcript, pp. 5, 26. Relevant statutory and regulatory provisions emphasize the importance of obtaining VA records as part of the duty to assist. See 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2) ; see also Bell v. Derwinski, 2 Vet. App. 611 (1992); Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). Consequently, the Board concludes that it must remand this case in order to obtain any such records. The Board also notes that review of the records on the VBMS system included an October 2011 SHARE print screen notation which suggests the Veteran may have filed a claim for disability benefits with the Social Security Administration (SSA). The Court has indicated that the duty to assist includes requesting information and records from the SSA which were relied upon in any disability determination. See Hayes v. Brown, 9 Vet. App. 67, 74 (1996) (VA is required to obtain evidence from the Social Security Administration, including decisions by the administrative law judge, and give the evidence appropriate consideration and weight); Murincsak v. Derwinski, 2 Vet. App. 363, 373 (1992); Masors v. Derwinski, 2 Vet. App. 181, 187-88 (1992); Collier v. Derwinski, 1 Vet. App. 413, 417 (1991); see also 38 U.S.C.A. § 5103A(c)(3); 38 C.F.R. § 3.159(c)(2). In addition, as a remand is otherwise required in this case, the Board finds the Veteran should be accorded a competent medical examination to clarify the nature and etiology of his claimed disabilities of the low back, heart, skin, hands, and right elbow. Further, the Veteran has intimated that his hearing loss may have worsened since the time of the July 2010 VA audio examination. Thus, if no treatment records are obtained showing an audio evaluation in August 2017 as indicated by the recent Board hearing, then he should also be accorded an examination to clarify whether he has a current disability of the right ear in accord with 38 C.F.R. § 3.385. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Request the Veteran's service personnel records through official channels. 2. Request the names and addresses of all medical care providers who have treated the Veteran for his heart disease, low back, skin, hands, right elbow, and left ear since September 2016. Even if the Veteran does not respond, determine if there are any VA medical records for the pertinent period as indicated at the August 2017 Board hearing. See Transcript, pp. 5, 26. After securing any necessary release, obtain those records not on file. 3. Request clarification from the Veteran whether he filed and/or was awarded disability benefits from the Social Security Administration. If the answer is in the affirmative, request the records pertinent to the Veteran's claim for Social Security disability benefits as well as the medical records relied upon concerning that claim. 4. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service heart, back, skin, hand, and right elbow symptomatology. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 5. After obtaining any additional records to the extent possible, the Veteran should be afforded an examination(s) to clarify the nature and etiology of his claimed disabilities of the low back, heart, skin, hands, and right elbow. The claims folder should be made available to the examiner(s) for review before the examination(s). For any of the claimed disabilities found to be present, the pertinent examiner should express an opinion as to whether it is at least as likely as not it was incurred in or otherwise the result of his active service. A complete rationale for any opinion expressed must be provided, to include if the examiner determines an opinion cannot be provided without resort to speculation. 6. If no VA audio evaluation from 2017 is of record, as indicated by the Veteran at his Board hearing, then he should also be afforded an examination to clarify whether he has a hearing loss disability of the right ear in accord with 38 C.F.R. § 3.385. The claims folder should be made available to the examiner for review before the examination. Further, if such a disability is found to be present, then service connection should be established in accord with the rationale expressed by the grant of service connection for a hearing loss disability of the left ear as detailed above. 7. After completing any additional development deemed necessary, readjudicate the issues on appeal in light of any additional evidence added to the records assembled for appellate review. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC), which addresses all of the evidence obtained since this case was last adjudicated below, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matter or 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs