Citation Nr: 1754399	
Decision Date: 11/29/17    Archive Date: 12/07/17

DOCKET NO.  10-09 371	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for loss of right upper teeth for compensation purposes.

3.  Entitlement to service connection for loss of left upper teeth for compensation purposes

4.  Entitlement to service connection for a right eye disorder.


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 Army from January 1977 to January 1980.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.

The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in May 2017.  

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 trauma for compensation purposes. 

For the reasons addressed in the REMAND portion of the decision below, the Board finds that further development is required regarding the right eye claim.  Accordingly, this claim is REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1.  Bilateral hearing loss had its onset in service.

2.  The record does not reflect the Veteran has a current dental disorder for which VA compensation may be paid; or that he sustained in-service dental trauma.


CONCLUSIONS OF LAW

1.  The criteria for a grant of service connection for a bilateral hearing loss disability 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 loss of right upper teeth for compensation purposes are not met.  38 U.S.C.A. §§ 1712, 5107 (West 2014); 38 C.F.R. §§ 3.306, 3.381, 4.150, 17.161 (2017).

3.  The criteria for a grant of service connection for loss of left upper teeth for compensation purposes are not met.  38 U.S.C.A. §§ 1712, 5107 (West 2014); 38 C.F.R. §§ 3.306, 3.381, 4.150, 17.161 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Preliminary Matters

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).

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 United States Court of Appeals for Veterans Claims (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).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C.A. § 5107(b).  When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant.  Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102.  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).  

Analysis - Hearing Loss

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.  

Initially, the Board notes that the Veteran does have a current bilateral hearing loss disability in accord with these requirements.  Specifically, a December 2008 VA audio examination revealed pure tone thresholds, in decibels, as follows:






HERTZ



500
1000
2000
3000
4000
Average
RIGHT
10
5
5
25
50
21.25
LEFT
10
5
5
15
45
17.5

Speech recognition scores were 100 percent for both ears.

The Veteran has essentially contended that he developed hearing loss as a result of in-service noise exposure, and has provided details thereof.  His account of such exposure has already been acknowledged to be credible by VA as it is consistent with his military occupational specialty (MOS) of helicopter repairman.

Despite the foregoing, the Board notes that there were no indications of a hearing loss disability of either ear pursuant to 38 C.F.R. § 3.385, to include evaluations conducted as part of service examinations in January 1977, April 1977, and May 1979.  Moreover, the December 2008 VA examiner provided an opinion against the current hearing loss disability being etiologically linked to service.

The Board also notes, however, that as acknowledged by the December 2008 VA examiner no actual separation examination appears to be of record.  Moreover, the examiner stated that he could not speculate on any change in hearing which might have occurred between the May 1979 hearing test and the Veteran's separation from service.

The Board further notes that while specific medical testing is required to determine whether one has a hearing loss disability for VA purposes, the Veteran is competent, as a lay person, to describe hearing problems.  In addition, the Board finds his account of recurrent hearing problems since service, to include as described at his May 2017 hearing, to be credible.  Moreover, it is consistent with the fact that service connection has been established for tinnitus; which is also of particular significance in this case as the December 2008 VA examiner indicated that the tinnitus and hearing loss were intertwined with one another.  In other words, the facts of this case reflect the pathology underlying the Veteran's hearing loss cannot be clearly disassociated from his service-connected tinnitus.

In view of the foregoing, the Board finds the competent and credible evidence of record reflects it is at least as likely as not the Veteran's current bilateral hearing loss disability developed as a result of his active service.  Therefore, service connection is warranted for this disability.

Analysis - Dental

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). 

The Board also notes that dental disabilities which 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, a thorough review of the record does not reflect the Veteran has one of the dental disorder(s) for which compensation may be paid under these regulatory provisions.  Without such a disorder, the claim must be denied.  See 38 U.S.C.A. 
§§ 1110, 1131; see also Brammer v. Derwinski, 3 Vet. App. 223 (1992); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997).

The Board reiterates that the Veteran did indicate at his May 2017 hearing that there were potentially outstanding private dental records that are not currently of evidence.  However, even if these records or other evidence demonstrated he did have a dental disorder(s) for which VA compensation may be pain, his claim 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).  The Board notes that the term "service trauma" does not include the intended effects of therapy or restorative dental care and treatment provided during a veteran's active service.  See 38 C.F.R. § 3.306 (b)(1); VAOGCPREC 5-97.  

In this case, the Board notes that while the Veteran's service treatment records document in-service dental treatment, there is no record which demonstrates he had in-service dental "trauma" as defined above.  In fact, when asked he indicated at his hearing he had no such trauma.  See Transcript p. 11.

Granted, the Veteran has contended he has had loss of teeth and other dental problems due to improper dental treatment during service, and the Federal Circuit specifically noted in Nielson v. Shinseki, 607 F.3d 802, 808 (Fed. Cir. 2010) "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, the Federal Circuit's holding in that case was clearly made in the context of a claim for VA outpatient dental treatment, not disability compensation.  See, e.g., Id. at 809 ("As the removal of Nielson's teeth was the intended result of the medical treatment, he did not suffer a 'service trauma' under 38 U.S.C. § 1712(a)(1)(C), and he is thus not entitled to outpatient dental treatment and related dental appliances."  As such, Nielson did not expand entitlement to disability compensation for dental conditions.

The Board further finds that the Veteran has not provided a persuasive argument that his in-service dental treatment was negligent or constituted medical malpractice, to include one that would warrant additional development such as competent medical examination and/or opinion.  In pertinent part, he has stated that he had cavities filled during service, and that sometime after service the fillings fell out and he developed other dental problems resulting in his teeth being pulled.  Given the Veteran's own account that the claimed dental problems developed after separation from service, the Board finds competent medical evidence would be required to demonstrate evidence of malpractice/negligence in the service dental treatment.  Here, the record does not reflect the Veteran is qualified to provide competent medical evidence; and no competent medical evidence is otherwise of record which supports his claim to include medical treatise evidence.  Thus, even if Nielson were applicable to the Veteran's claim of service connection for dental disorder for compensation purposes, the record does not reflect the in-service dental treatment would constitute "trauma" based upon negligence or malpractice.

For these reasons, the Board finds the preponderance of the evidence is against the Veteran's dental claim.  Consequently, the benefit sought on appeal with respect to this claim must be denied.


ORDER

Service connection for bilateral hearing loss is granted.

Service connection for loss of right upper teeth for compensation purposes is denied.

Service connection for loss of left upper teeth for compensation purposes is denied.


REMAND

With respect to the right eye claim, the Board notes that vision loss - a refractive error of the eye - is one of the specific conditions that VA does not grant service connection for, as it is not considered a disability for VA purposes.  See 38 C.F.R. §§ 3.303(c), 4.9.  Such a condition is part of a life-long defect, and is normally a static condition which is incapable of improvement or deterioration.  See VAOGCPREC 67-90 (1990).  

The Board further notes that the Veteran has contended he developed right eye problems as a result of piece of metal lodged in his eye.  His service treatment records do document treatment for foreign body of the left eye in October 1979, but not the right.  Nevertheless, the Veteran contends, to include at his May 2017 hearing, that this record was in error, and that it was actually his right eye that was injured at that time during service.  In addition, following his hearing his spouse submitted a supporting lay statement in May 2017 attesting that when they met in 1997 he had a star-like shape on his right eye and diminished vision.

The Board acknowledges that a January 2017 VA examination included findings that there was no evidence of any residual injury of the right eye, but there was a small corneal scar in his left eye.  However, this examination also stated there was no decrease in visual acuity or other visual impairment.  This finding appears inconsistent with the fact the examination also stated that uncorrected near vision of the right eye was 20/50 and the left was 20/70, both correctable to 20/40 or better.  Moreover, it was not explicitly addressed whether such impairment was due to refractive error or some other cause.  It was also noted that the Veteran reported glare/starbursts and spot in his right eye.  As such, it is not clear from this examination whether the Veteran does, in fact, have an acquired eye disorder.  Thus, it does not appear this examination is adequate for resolution of this case.  Further, the VA examiner did not have the benefit of the supporting lay statement from the Veteran's spouse to consider as part of this examination.

In view of the foregoing, the Board finds that a remand is required to accord the Veteran a new competent medical examination to adequately address the nature and etiology of his claimed right eye disorder.  

Accordingly, the case is REMANDED for the following action:

1.  Request the names and addresses of all medical care providers who have treated the Veteran for his right eye since January 2017.  Even if the Veteran does not respond, determine if there are any outstanding VA medical records.

After securing any necessary release, obtain those records not on file.

2.  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 right eye symptomatology.  The Veteran should be provided an appropriate amount of time to submit this lay evidence. 

3.  After obtaining any additional records to the extent possible, the Veteran should be afforded an examination to evaluate the nature and etiology of his claimed right eye disorder.  The claims folder should be made available to the examiner for review before the examination.

Following evaluation of the Veteran, the examiner must indicate whether there is any impairment of the right eye other than refractive error.  If any such disorder is found to be present, the 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 should be provided, to include if the examiner determines an opinion cannot be provided without resort to speculation.  The examiner's opinion should also reflect consideration of the lay evidence of recurrent right eye problems, to include from the Veteran and his spouse; and that the in-service treatment in October 1979 for foreign body of the eye should be considered for the right eye for purposes of this case.

4.  After completing any additional development deemed necessary, readjudicate the issue 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 the right eye claim 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