Citation Nr: 1800307	
Decision Date: 01/04/18    Archive Date: 01/19/18

DOCKET NO.  10-22 389A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland


THE ISSUES

1.  Entitlement to service connection for left ear hearing loss.

2.  Entitlement to service connection for tinnitus, to include as secondary to hearing loss.

3.  Entitlement to service connection for residuals of an eye injury.

4.  Entitlement to service connection for residuals of head trauma, to include headaches.

5.  Entitlement to service connection for a back disability.

6.  Entitlement to service connection for a left leg disability, to include as secondary to a back disability.

7.  Entitlement to service connection for loss of teeth.

8.  Entitlement to a compensable disability rating for right ear hearing loss.
REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his daughter


ATTORNEY FOR THE BOARD

R. Scarduzio, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1956 to May 1964 and on Active Guard/Reserve Status from March 1984 to January 1985, with additional periods of National Guard and Reserve service.  His awards and decorations include the Soldier's Medal, among others. 

This matter comes before the Board of Veteran's Appeals (Board) from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 

Regarding the characterization of the issues, although the Veteran's service connection claims were certified to the Board as claims to reopen based on new and material evidence, the Board will consider the matters of service connection de novo.  The Veteran's service connection claims were denied in a February 2009 rating decision, and he filed a notice of disagreement in March 2009.  A statement of the case was issued in August 2010.  While absent from the file until recently, the Veteran submitted a VA date stamped copy of a VA Form 9 he timely submitted in September 2010.  Therefore, the submission of new and material evidence is not necessary.

The Board also notes that the Veteran's claim for service connection for residuals of an eye injury was originally certified to the Board as specific to the Veteran's left eye.  Indeed, the medical evidence of record indicates a contusion of the left orbital area.  However, as the Veteran has asserted that it is actually his right eye that is affected, the issue has been broadened as reflected on the title page of this decision. 

In September 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is of record. 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

The issues of entitlement to service connection for left ear hearing loss, tinnitus, a back disability, a left leg disability, and residuals of head trauma, as well as and entitlement to a compensable disability rating for right ear hearing loss, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The evidence is against a finding that the Veteran has residuals of an in-service eye injury for service connection purposes. 

2.  While the Veteran is missing teeth, he has complete dentures; he does not have tooth loss due to loss of substance of body of maxilla or mandible where the lost masticatory surface cannot be restored by suitable prosthesis.




CONCLUSIONS OF LAW

1.  The criteria for establishing service connection for residuals of an eye injury have not been met.  38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).

2.  The criteria for establishing service connection for loss of teeth have not been met.  38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.381, 4.150, Diagnostic Code 9913 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Service connection will be granted on a direct basis if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service.  38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017).  

Establishing service connection generally requires competent evidence of three things:  (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009).  Service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. 

Additionally, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence.  See Rucker v. Brown, 10 Vet. App. 67, 74 (1997).  

Further, it is the Board's responsibility to evaluate the entire record on appeal.  38 U.S.C. § 7104(a).  When there is an approximate balance in the 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 claimant.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Eye Injury

The Veteran has asserted that he currently suffers from residuals of an eye injury that resulted from an in-service physical altercation.  The record reflects an October 1958 incident where the Veteran was struck from behind and kicked repeatedly while unconscious.  While a fractured skull was suspected, the final diagnosis was a left orbital socket contusion and a concussion.  Ecchymosis was also noted, particularly around the right eye. 

While the Veteran asserts that he suffers from blurriness as a result of his orbital 1958 contusion, treatment records are absent any current chronic disability for service connection purposes.  Physical examinations and reports of medical history in the Veteran's service treatment record following the in-service injury are negative for eye problems.  While a December 1998 private treatment record notes a complaint of decreased sensation over the left eye, the evidence suggests this was due to an acoustic neuroma that was subsequently removed, and the record is absent any further indication of a chronic left eye condition.  Moreover, the Veteran asserted in his September 2017 hearing testimony that his disability relates to the right eye rather than the left.  

The Veteran has not identified any additional outstanding records that might indicate he has a disability as a result of his in-service eye socket contusion.  Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  See 38 U.S.C. § 1131.  In the absence of proof of current diagnoses of the claimed disabilities, service connection for those disabilities cannot be established.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  
	
The Board acknowledges the Veteran's lay assertions regarding the existence of a disability.  However, the statements do not establish a current disability.  The Veteran, as a lay person, has not shown that he has specialized training sufficient to render such an opinion.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis).  While the residuals of an eye injury may be capable of lay observation, the medical record does not include symptomology that could reasonably be found to represent a disability due to residuals of his in-service eye injury.  Accordingly, an opinion by the Veteran as to diagnosis of residuals of an eye injury is not competent medical evidence.  

Without competent evidence of symptomology related to residuals of an in-service eye injury, the preponderance of the evidence is against the Veteran's claim for service connection.
 
Loss of Teeth

The Veteran seeks service connection for the loss of his teeth.  The record reflects that the Veteran had missing teeth during service, which he indicates were knocked out in the 1958 incident that caused his head trauma, including his two upper front teeth.  In his hearing testimony, he asserted that he was afforded partial dentures to repair his broken teeth, but that they eventually caused his gums to be infected and all of his teeth were later extracted.  

A dental examination was afforded to the Veteran in January 2009.  The examiner noted the Veteran's report of missing teeth due to the head injury/altercation, and that his remaining teeth were removed in the 1980's due to carries and periodontal disease.  Complete had been fabricated.  The examiner found that there was no loss of the bone of the maxilla or mandible, no evidence of osteomyelitis, and no tooth loss due to loss of substance of the body of the maxilla or mandible.  

To be considered a disability for VA compensation purposes, teeth must be missing due to due to loss of substance of body of maxilla or mandible where the lost masticatory surface cannot be restored by suitable prosthesis.  38 C.F.R. §§ 3.381, 4.150, Diagnostic Code 9913.  Replaceable missing teeth are not compensable disabilities.  38 C.F.R. § 3.381.  In this case, the VA examiner found no bone loss of the Veteran's maxilla or mandible or tooth loss due to substance of the body of the maxilla or mandible.  In addition, the Veteran has complete dentures (a.k.a., a prosthesis to restore the masticatory surface).  Simply put, the Veteran does not have a tooth loss disability for VA compensation purposes.  

The Board acknowledges the Veteran's lay assertions regarding his missing teeth.  However, the statements do not establish a current disability in that they do not establish loss of substance of the body of the maxilla or mandible.  The Veteran, as a lay person, has not shown that he has specialized training sufficient to render such an opinion.  See Jandreau, 492 F.3d at 1376-77.  In addition, the Veteran has reported wearing complete dentures, which is evidence against his claim.  

As noted above, Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  See 38 U.S.C. § 1131.  In the absence of proof of a current diagnosis of the claimed disabilities, service connection for cannot be established.  See Brammer, 3 Vet. App. at 225.  

Without evidence establishing a current dental disability for VA purposes, the preponderance of the evidence is against the Veteran's claim for service connection.


ORDER

Entitlement to service connection for residuals of an eye injury is denied.

Entitlement to service connection for loss of teeth is denied.


REMAND

While the Board regrets further delay, remand is necessary to afford the Veteran additional VA examinations and opinions and to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration.

Hearing Loss 

The Veteran contends in his September 2017 hearing testimony that his service-connected right ear hearing loss has worsened since the last VA audiology examination that was conducted in May 2014.  Under these circumstances, VA must afford the Veteran a new VA examination to determine the current severity of this condition.  38 C.F.R. § 3.159(c)(4)(i); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that VA's statutory duty to assist includes a thorough and contemporaneous medical examination).

As to the claim for service connection for left ear hearing loss, the record reflects that the Veteran underwent surgery in 1998 for removal of an acoustic tumor.  At that time, he reported hearing loss in the military.  The Board notes that the Veteran's service treatment records for his first period of active service from December 1956 to May 1964 reflect no complaints or diagnostic findings of hearing loss.  However, a retention examination in March 1983 notes impaired hearing in the Veteran's left ear.  An additional report of medical examination in September 1987 notes bilateral hearing loss, with the left ear worse.  

Upon VA examination in September 2014, the examiner opined that the Veteran's left ear hearing loss was not at least as likely as not caused by or a result of an event in military service, explaining that the surgery performed on his acoustic neuroma in 1998 caused his left ear hearing loss, not his military history.  As the Veteran's audiological findings of bilateral hearing loss in 1983 and 1987 were not addressed in the examiner's opinion, an additional opinion is required.

The Board also notes that the evidence reflects additional theories of entitlement for the Veteran's left ear hearing loss claim.  In his September 2017 hearing testimony, the Veteran asserted that his in-service head injury caused his acoustic neuroma, the removal of which caused his current left ear hearing loss.  Further, the Veteran's spouse asserted in an August 2013 letter that the Veteran noticed hearing loss after altitude chamber training in service.  In addition, while the January 2009 VA examiner's report states that several risk factors are associated with the development of acoustic neuroma, including exposure to loud noise, the examiner did not further elaborate as to the possibility that in-service noise exposure may be actual cause of the Veteran's acoustic neuroma and subsequent surgery.  These additional theories should also be addressed upon remand.      

Tinnitus

Regarding the Veteran's tinnitus claim, the September 2014 VA examiner noted that the Veteran did have recurrent tinnitus in his right ear.  The examiner opined that, since the Veteran reported that his tinnitus began 20 years after he left the military, it was less likely than not that it was caused by or a result of military noise exposure.  Indeed, previous VA examinations in January 2009 and October 2012 note that the Veteran did not report tinnitus.  The Board, however, finds the opinion inadequate as the examiner did not provide an opinion as to whether the Veteran's tinnitus could be secondary to his hearing loss.  The Board also notes for the record, that tinnitus was reported by the Veteran prior to his 1998 surgery for removal of the acoustic tumor.  As such, a VA examination is needed to address the medical question concerning whether the Veteran's bilateral hearing loss was caused or aggravated by his tinnitus.

Back Disability

At his September 2017 Board hearing, the Veteran reported intermittent back pain and numbness in the left lower extremity.  The Veteran asserted that he injured his back during his second period of active service, from March 1984 to January 1985, while delivering a water trailer to a Boy Scouts of America (BSA) camp on behalf of the National Guard in late July 1984.  The record confirms that the Veteran was hospitalized for a lower back injury the following August for which surgical intervention was required.  

The Veteran was afforded a VA examination for his back in January 2009 where degenerative changes in the lumbar spine and radiculopathy were diagnosed.  However, no etiological opinion was provided.  Instead, the RO denied the Veteran's claim on a finding that the injury did not occur in the line of duty, noting a Maryland National Guard Line of Duty Report dated November 27, 1984.  
In order for a veteran to be entitled to disability compensation, the injury or disease from which the veteran's disability results must have been incurred in or aggravated by active military, naval, or air service "in line of duty."  38 U.S.C. §§ 101(16), 105(a), 310, 331; see also 38 C.F.R. §§ 3.1(k), 3.1(m), 3.301(a).  The term "in line of duty" means "an injury or disease incurred or aggravated during a period of active military, naval, or air service unless such injury or disease was the result of the veteran's own willful misconduct."  38 C.F.R. § 3.1(m); see also 38 U.S.C. 
 § 105(a); 38 C.F.R. § 3.301(a).

The Board finds that the Veteran's low back injury that occurred in July 1984 and led to hospitalization the following month was in the line of duty for service connection purposes.  The Veteran has consistently stated that he was ordered by superior officers to make the water trailer delivery after his normal duty hours.  The Board notes that the Veteran has also submitted a letter sent from a BSA representative, dated May 1984, making the initial request to the Maryland National Guard for a water trailer to be delivered to a BSA camp on July 27, 1984, after 1800 hours.  Moreover, the November 1984 Line of Duty Report specifically notes that the incident was not due to the Veteran's own misconduct.  

Thus, upon remand, and as no etiological opinion has yet to be provided, a determination should be made by a VA examiner as to whether the Veteran's low back disability was caused or aggravated by his active service.  

The Board also notes that the record reflects that the Veteran's low back disability may have preexisted his second period of active service from March 1984 to January 1985.  Treatment records from the Veteran's hospitalization for the above incident in August 1984 indicate the Veteran reporting two previous back injuries in 1980 and 1982, including the removal of a herniated disc.  In a November 1984 investigation report regarding the above back injury, it was noted that the Veteran injured his back prior to service, and that he did not report the previous injury on entrance and his examination was normal.  Review of the record, however, reflects that a retention examination in March 1983 noted surgery of a herniated lumbar disc.  Also, the Veteran's entrance examination in February 1984 notes a scar over the Veteran's left lumbar area with "no residual defect," and the Veteran reported a June 1982 removal of a herniated disc in his Report of Medical History.  

Given that the Veteran was presumed sound upon entrance, and that no medical opinion currently of record addresses whether the Veteran's back disability clearly and unmistakably preexisted service, the Board finds that an opinion is necessary to also address the presumption of soundness.  See 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304(b) (2017).  

Left Leg Disability

In a November 2007 statement in support of his back disability claim, the Veteran also described an injury to his left leg during the same incident.  Treatment records during his subsequent August 1984 hospital admission also show left leg pain and an indication of sciatica.  Upon VA examination in January 2009, the Veteran reported constant numbness in the lateral portion of the top left foot.  Sensory and motor exam revealed a loss of vibratory sense, as well as dulled pin prick sense in the L5-Sl dermatome.  Strength was 4/5 in the left lower extremity.  

As it appears that the Veteran may have a left leg disability related to his back disability, the Board finds that the claims are inextricably intertwined, and determination should also be made upon VA examination as to whether the Veteran has a current neurological abnormality that is associated with his low back disability.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other).  

Residuals of Head Trauma

The Veteran claims that he has intermittent headaches as a result of the aforementioned in-service head trauma.  Specifically, he asserts that his in-service head trauma is the direct cause of his current headaches.  In the alternative, the Veteran asserts that the in-service head trauma caused the development of the acoustic neuroma that was removed in 1998, and that surgery and its residuals cause his current headaches.  

The Veteran's service treatment record dated from 1964, subsequent to his head trauma, notes dizziness.  Private treatment records dated in August 2007 notes the Veteran reporting headaches and dizziness, though the assessment was that these were likely due to cervical spondylosis.  At a VA brain examination in January 2009 where he reported that he gets headaches in the frontal region of the head, the examiner opined that there were no residuals if an in-service brain injury.  The Veteran's spouse reported in a July 2016 statement that the Veteran has headaches "all the time."  At his September 2017 Board hearing, he reported continued intermittent headaches. 

As there is a history of in-service head trauma, the 1998 removal of the Veteran's acoustic neuroma, and evidence of continuity of symptomology of headaches and dizziness, the Board finds that the Veteran should be afforded a new VA examination to determine the nature and etiology of any brain injury, to include residuals of the in-service head trauma.   

Accordingly, the case is REMANDED for the following actions:

(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.  Ask the Veteran to identify any outstanding treatment records relevant to his claims.  All identified VA records should be added to the claims file.  All other properly identified records, such as private treatment records, should also be obtained if the necessary authorization to obtain the records is provided by the Veteran.  If any records are not available, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records.

2.  After the above actions have been completed to the extent possible, schedule the Veteran for a VA audiological examination to determine both the nature and etiology of his left ear hearing loss and tinnitus as well as the current severity of his service-connected right ear hearing loss.  All indicated tests and studies must be performed.  After examination of the Veteran and thorough review of the claims file, the examiner is asked to address the following:

a)  Provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's left ear hearing loss had its onset during military service or is otherwise causally or etiologically related to his military service.  

     The examiner should specifically address: 1) the 1983 and 1987 audiological findings indicating bilateral hearing loss in the Veteran's service treatment records; 2) the connection between noise exposure and the later development of acoustic neuroma in the context of the Veteran's claim; 3) the Veteran's contention that the in-service head injury alone caused his hearing loss and/or the acoustic neuroma that was removed in 1998; 4) the Veteran's contention that hearing loss could be attributable to altitude chamber training.   

b)  Provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran has tinnitus (i) that had its onset during military service or is otherwise causally or etiologically related to his military service, to include his in-service head injury; or, (2) was caused or aggravated (worsened beyond normal progression) by his hearing loss.
	
The term "at least as likely as not" does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of a certain conclusion as it is to find against it.

A rationale for all opinions should be provided.

3.  Schedule the Veteran for a VA spine examination to determine the nature and etiology of his low back disability, to include any associated neurological impairment.  All indicated tests and studies must be performed.  The claims file should be provided to the examiner in conjunction with the examination.  The examiner should identify all current chronic back disorders.  For each back diagnosis made, the examiner is asked to address the following:
	
a)  Provide an opinion as to whether the Veteran's back disability clearly and unmistakably preexisted the Veteran's military service.  

b)  If the Veteran's low back disability is found to have clearly and unmistakably preexisted military service, the examiner must then provide an opinion as to whether the Veteran's military service clearly and unmistakably did not aggravate the preexisting back disability beyond its normal progression.  Consideration should be given to the Veteran's 1984 back injury and subsequent hospitalization.

c)  If the diagnosed disability did not clearly preexist service or it is not clear that there was no aggravation in service, then legally the Veteran is presumed to have entered service free from a back disorder.  If this is the case, the VA examiner is to opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the currently diagnosed low back disability had its onset during military service or is otherwise causally or etiologically related to his military service.   Consideration should be given to the Veteran's 1984 back injury and subsequent hospitalization.

For the purposes of the opinion, the examiner should accept that the Veteran's injury that led to his August 1984 hospitalization was incurred "in the line of duty."
The term "at least as likely as not" does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of a certain conclusion as it is to find against it.

A rationale for all opinions should be provided.

4.  Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed head trauma, to include headaches.  All indicated tests and studies must be performed.  After examination of the Veteran and thorough review of the claims file, the examiner is asked to address the following:

a)  Provide an opinion as to whether the Veteran has a current diagnosis of headaches, traumatic brain injury, or any other disability that is potentially related to a head trauma.

b)  If the answer to a) is in the positive, the examiner must then provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that this disability or disabilities had their onset during military service or is otherwise causally or etiologically related to his military service, to include the head trauma sustained in 1958.

c)  If the answer to a) is in the negative, the examiner must then provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that this disability or disabilities are causally or etiologically related to the Veteran's acoustic neuroma surgery in 1998.

d) If the answer to c) is in the positive, the examiner must then provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that his acoustic neuroma had its onset during military service or is otherwise causally or etiologically related to his military service, to include the head trauma sustained in 1958.

The term "at least as likely as not" does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of a certain conclusion as it is to find against it.

A rationale for all opinions should be provided.

5.  After completing the above actions, and any other development deemed necessary, the AOJ should readjudicate the claims on appeal.  If any benefit sought on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative.  After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).





      (CONTINUED ON NEXT PAGE)
These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board 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. §§ 5109B, 7112 (2012).



______________________________________________
Nathan Kroes
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs