Citation Nr: 1800250 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 13-26 004 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a cervical spine disability, claimed as a neck disability. 2. Entitlement to service connection for a lumbar spine disability. 3. Entitlement to service connection for loss of teeth. 4. Entitlement to service connection for a right foot disability claimed as residuals of a cold injury and variously diagnosed as nail abnormalities with arthralgia and onychomycosis. 5. Entitlement to service connection for a left foot disability claimed as residuals of a cold injury and variously diagnosed as nail abnormalities with arthralgia and onychomycosis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1974 to December 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Board notes that the Veteran initially claimed a foot injury, specifically residuals of a cold injury during service. As is discussed in the below decision, the Veteran does not have a present diagnosis of cold injury residuals, but has been diagnosed with other foot disabilities. The Court of Appeals for Veterans Claims (Court) has held that a claim of service connection includes any disability reasonably encompassed by that claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, the Board has characterized the right and left foot claims to include the diagnoses of nail abnormalities with arthralgia and onychomycosis. FINDINGS OF FACT 1. The Veteran does not have a presently diagnosed cervical spine disability. 2. The Veteran does not have a dental condition or disability as a result of combat wounds or other trauma during his active military service. 3. The Veteran did not sustain an in-service low back injury. 4. The Veteran's right foot nail abnormalities with arthralgia and onychomycosis at least as likely as not had onset during active service. 5. The Veteran's left foot nail abnormalities with arthralgia and onychomycosis at least as likely as not had onset during active service. CONCLUSIONS OF LAW 1. The criteria for service connection of a cervical spine disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 1712, 5107 (West 2014); 38 C.F.R. § 3.303, 3.381, 4.150 (2016). 2. The criteria for service connection of a lumbar spine disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 1712, 5107 (West 2014); 38 C.F.R. § 3.303, 3.381, 4.150 (2016). 3. The criteria for service connection for service connection for periodontal disease for compensation purposes have not been met. 38 U.S.C.A. §§ 1110, 1131, 1712, 5107 (West 2014); 38 C.F.R. § 3.303, 3.381, 4.150 (2016). 4. The criteria for service connection of a right foot disability, diagnosed as nail abnormalities with arthralgia and onychomycosis, have been met. 38 U.S.C.A. §§ 1110, 1131, 1712, 5107 (West 2014); 38 C.F.R. § 3.303, 3.381, 4.150 (2016). 5. The criteria for service connection of a left foot disability, diagnosed as nail abnormalities with arthralgia and onychomycosis, have been met. 38 U.S.C.A. §§ 1110, 1131, 1712, 5107 (West 2014); 38 C.F.R. § 3.303, 3.381, 4.150 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C.A. §§ 5103, 5103A (West 2014) and 38 C.F.R. § 3.159 (2016). Here, the duty to notify was satisfied by way of a letter sent in June 2011. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement relevant treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished and all available evidence pertaining to the matter decided herein has been obtained. The RO has obtained the Veteran's VA treatment records, service treatment records, VA examination reports, RO hearing testimony, and statements from the Veteran and his representative. Neither the Veteran nor his representative has notified VA of any outstanding evidence, and the Board is aware of none. The Board notes that the Veteran has not been afforded a VA examination in connection with his lumbar spine disability claim. VA's duty to assist requires it to provide a medical examination if the information and evidence of record does not contain sufficient evidence to decide the claim, but (A) contains evidence of a currently diagnosed disability; (B) establishes that the Veteran suffered an event, injury or disease in service; and (C) indicates that the claimed disability may be related to the in-service incident or injury. 38 C.F.R. § 3.159(c)(4)(1) (2016). The duty to provide an examination is limited to the above criteria. Robinson v. Peake, 21 Vet. App. 545, 553 (2008). As is discussed in more detail below, the Veteran did not suffer an in-service injury, illness or event to which his present disability may be linked. As such, the duty to assist does not require VA to obtain a medical opinion in that matter. Hence, the Board is satisfied that the duty to assist was met. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Service Connection The Veteran seeks service connection for a cervical spine (neck) disability, a lumbar spine disability, loss of teeth, and a right and left foot disability. He contends that his neck and teeth disabilities are secondary to his service-connected schizophrenia. The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2016). 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). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) 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, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). A disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310 (2016). After a careful review of the evidence of record, the Board finds that service connection should not be granted for a neck disability, a lumbar spine disability, or loss of teeth. However, the Board finds that a right and left foot disability should be granted service connection. At the outset, the Board finds that the Veteran does not have a presently diagnosed neck disability. The Veteran's VA treatment records were reviewed and showed complaints of neck spasms and neck pain. However, no actual diagnosis was given for those symptoms. The Veteran was afforded a VA examination in September 2013. The examiner conducted a thorough examination and concluded that there is no current evidence of neck pathology. The Board does acknowledge the Veteran's documented complaints of pain, however pain alone is not a disability for VA purposes. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). The Board has reviewed all of the evidence and not found any evidence of a presently diagnosed neck disability. As such, the claim fails the first criteria for service connection, and must be denied. Concerning the claim of a low back disability. The Veteran has a May 2000 diagnosis of moderate spondylosis at L4-L5 and L5-S1 with mild disc space narrowing. A that time he reported pain following weight lifting that day. He also reported a history of back surgery in 1985, nearly a decade after separation from service. However, the Board has reviewed the Veteran's service treatment records and not found any evidence of an in-service spine injury. His treatment records make no mention of such an injury, and upon separation, the Veteran did not report any low back injury, despite reporting numerous other in-service injuries and illnesses. Absent competent and credible evidence of a low back injury during active service, the claim must be denied as it fails to meet the second criteria for service connection. Regarding the claimed dental condition, service connection for compensation purposes is only available for certain types of dental and oral conditions, such as disabilities resulting from service trauma, including 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 (2016). Trauma, as defined for purposes of service-related dental disability, connotes damage caused by the application of sudden, external force, brought to bear outside a clinical setting; for these purposes, the term "service trauma" does not include the intended effects of therapy or restorative dental care and treatment provided during a Veteran's military service. 38 C.F.R. § 3.306 (b)(1) (2016); VAOGCPREC 5-97 (1997); see also Nielson v. Shinseki, 607 F.3d 802 (2010) (holding that "service trauma" in 38 U.S.C. § 1712 (a)(1)(C) means an injury or wound produced by an external physical force during the service member's performance of military duties; this definition excludes the intended result of proper medical treatment and psychological stress not the result of malpractice). Further, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not disabilities for compensation purposes, but may be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment. 38 U.S.C.A. § 1712 (West 2014); 38 C.F.R. §§ 3.381, 4.150 (2016). A review of the Veteran's service treatment records reveals treatment for periodontal disease while in service. There is no evidence of any dental trauma during active service. In September 2013, the Veteran was afforded a VA examination. The examiner concluded that the Veteran currently has periodontal disease with no other diagnosis. The Veteran is precluded from entitlement to service connection for compensation purposes for periodontal disease or for treatable carious teeth. See 38 C.F.R. § 3.381. Thus, to the extent he is seeking service connection for this disease for compensation purposes, his claim must be denied as a matter of law. Additionally, there is no evidence to suggest that the Veteran has any other dental disability, which is subject to service connection for compensation purposes. (E.g. a dental disability resulting from dental trauma during service). Id., 38 C.F.R. § 4.150. As the disposition of this claim is based on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In reaching the above conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C.A. § 5107 (West 2014); Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102 (2016). Finally, the Veteran claimed a bilateral foot disability, specifically the residuals of an in-service cold injury. A review of the Veteran's service treatment records reveals that he did, in fact, sustain a mild cold injury to his feet in March 1976. In light of this, the Veteran was afforded a VA examination in February 2012. The examiner concluded that the Veteran does not presently have residuals of a cold injury. Specifically, there was no tissue damage at the time of the initial injury. Nonetheless, the examiner noted that the Veteran also developed fungus infections and other foot problems following the episode of cold injury, which have persisted until the present. Specifically, the examiner diagnosed nail abnormalities with arthralgia and onychomycosis. The examiner stated that those disabilities were not the direct result of the cold injury but did develop concomitantly. As discussed above, a claim of service connection includes any disability reasonably encompassed by that claim. Clemons, 23 Vet. App. 1. In this case, the Veteran's nail abnormalities with arthralgia and onychomycosis have been found to have developed at the same time as his cold injury, and therefore it is reasonable that he would consider them related. As such, the Board will consider whether the diagnosed foot conditions should be service connected. Although the examiner did not find the present diagnoses to be related to the cold injury itself, the examiner has opined that they had onset at approximately the same time, namely around March 1976, during the Veteran's active service, and have persisted to the present. Therefore, because the Veteran's bilateral nail abnormalities with arthralgia and onychomycosis had onset during active service, service connection is appropriate. ORDER Service connection for a neck disability is denied. Service connection for a low back disability is denied. Service connection for loss of teeth is denied. Service connection for a right foot disability, diagnosed as bilateral nail abnormalities with arthralgia and onychomycosis, is granted. Service connection for a left foot disability, diagnosed as bilateral nail abnormalities with arthralgia and onychomycosis, is granted. ____________________________________________ B. T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs