Citation Nr: 1800516	
Decision Date: 01/05/18    Archive Date: 01/19/18

DOCKET NO.  14-35 316	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss disability. 

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to service connection for left eye pain.  

4.  Entitlement to service connection for a dental condition.


REPRESENTATION

Appellant represented by:	Michael J. Kelley, Attorney


WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

R. E. Jones, Counsel


INTRODUCTION

The Veteran served on active duty from January 1979 to May 1979.  

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

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 bilateral hearing loss disability and for a left eye disability 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 Veteran developed tinnitus as a result of service.

2.  The Veteran did not have dental trauma during service.  There is no evidence of a current dental condition which is related to an in-service dental trauma, and there is no current dental condition otherwise related to military service.


CONCLUSIONS OF LAW

1.  The criteria for service connection for tinnitus have been met.  38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017).

2.  A dental condition, including one which would entitle the veteran to VA outpatient dental treatment, was not incurred in or aggravated by active service. 38 U.S.C. § 1712 (2012); 38 C.F.R. §§ 3.303, 3.381, 17.161 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C. §§ 5103, 5103A (2012), and implemented at 38 C.F.R. § 3.159 (2017), amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim.

The duty to notify has been met.  Neither the Veteran, nor his representative, has alleged prejudice with regard to notice.  The Federal Court of Appeals has held that "absent extraordinary circumstances... it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...."  Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  No such arguments have been raised.  In light of the foregoing, nothing more is required.

The Board is satisfied that VA has made reasonable efforts to obtain relevant records and evidence regarding the issues decided below.  The Veteran's service treatment records (STRs) and his VA treatment records have been associated with the record.  The Veteran has been provided a VA medical examination.   

In sum, the Board is satisfied that the originating agency properly processed the Veteran's claims after providing the required notice and that any procedural errors in the development and consideration of the claims by the originating agency were insignificant and non-prejudicial to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).


II.  Service Connection Law and Regulations

To establish service connection a Veteran must generally show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service."  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service.  This may be accomplished by affirmatively showing inception or aggravation during service.  38 C.F.R. § 3.303(a). 

Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service.  38 C.F.R. § 3.303(d).

Supplementary regulations also govern dental claims.  Under current VA regulations, compensation is only available for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla.  Compensation is available for loss of teeth only if such is due to loss of substance of body of maxilla or mandible due to trauma or disease such as osteomyelitis, but not periodontal disease.  The Federal Circuit Court defines "service trauma" as "an injury or wound produced by an external physical force during the service member's performance of military duties."  Nielson v. Shinseki, 23 Vet. App. 56, 60 (2009).  This definition includes the unintended results of treatment due to medical malpractice, but excludes the intended result of proper medical treatment.  Id.   

III.  Tinnitus

The Veteran submitted a claim for service connection for tinnitus in May 2009.  At his October 2017 hearing the Veteran reported that he developed ringing in his ears due to exposure to grenade explosions during service.  He stated that he had had tinnitus ever since that time.  

The Veteran was provided a VA audiology examination in August 2009.  He reported that he was exposed to a grenade explosion during service and that his ears began to ring right away.  He reported having tinnitus ever since.  The VA examiner noted that the Veteran had mild high tone hearing loss at 6 kHz bilaterally.  She stated that based on the Veteran's normal entry examination, his lack of noise history since military, the report of tinnitus beginning while in basic training, the configuration of the "dip" at 6 kHz bilaterally, and her clinical expertise, it was her opinion that the Veteran's tinnitus was as likely as not related to his military noise exposure.  

The Veteran was also examined by a VA physician in August 2009.  The VA examiner hesitated to state that the Veteran's tinnitus was the result of noise exposure during military service.  

Here a VA audiologist has provided a well-reasoned opinion that the Veteran's tinnitus is related to service.  The Board finds this opinion more probative than the uncertain opinion provided by the VA physician who was hesitant to relate the Veteran's tinnitus to service.  Consequently, the Board finds that the evidence is at least in equipoise regarding whether the Veteran's tinnitus is related to service.  Accordingly, service connection for tinnitus is warranted.  All doubt has been held in the Veteran's favor.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

IV.  Dental Condition

The Veteran submitted a claim for service connection for a dental condition in May 2009.  At his October 2017 hearing the Veteran testified that he did not have any trauma to the teeth during service.  He reported that after service he was homeless, he was unable to care for his teeth, and he started losing his teeth.  He said that he no longer has any teeth. 

Current regulations provide that treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not disabling, and may be considered service connected solely for the purpose of establishing eligibility for VA outpatient dental treatment.  38 C.F.R. § 3.381(a).  Service connection may be granted for a dental condition of each tooth and periodontal tissue shown by the evidence to have been incurred in or aggravated by service.  When applicable, a determination will be made as to whether it is due to a combat wound or other service trauma, or whether the veteran was interned as a prisoner of war (POW).  38 C.F.R. § 3.381(b).  The significance of finding a dental condition is due to service trauma is that a veteran will be eligible for VA dental treatment for the condition, without the usual restrictions of timely application and one-time treatment.  38 C.F.R. § 17.161(c). 

The following will not be service connected for treatment purposes: (1) calculus; (2) acute periodontal disease; (3) 3rd molars, unless disease or pathology of the tooth developed after 180 days or more of active service, or was due to combat or in- service trauma; (4) impacted or malposed teeth, and other developmental defects, unless disease or pathology of these teeth developed after 180 days or more of active service.  Teeth extracted because of chronic periodontal disease will be service-connected only if they were extracted after 180 days or more of active service.  38 C.F.R. § 3.381(e). 

Legal authority provides that various categories of eligibility for VA outpatient dental treatment-such as veterans having a compensable service- connected dental condition (Class I eligibility); one-time treatment for veterans having a noncompensable service- connected dental condition, provided they apply for treatment within a year after service (Class II eligibility); those having a noncompensable service-connected dental condition adjudicated as resulting from a combat wound or other service trauma (Class II(a) eligibility); and those who were detained as a POW (Class II(b) and Class II(c) eligibility), etc.  38 U.S.C. § 1712; 38 C.F.R. § 17.161. 

The service treatment records (STRs) reveal no trauma to the teeth.  From August 2001 onward, private treatment records show treatment for teeth pain and extraction of teeth.  VA treatment records show complaints of tooth pain in May 2009.  

The record does not demonstrate the existence of a current dental condition for which service connection might be granted.  The Board notes that the STRs do not show, and that the Veteran does not allege, any service dental trauma.  Thus, service connection for a dental condition involving service trauma may not be granted, and there is no related eligibility for treatment under Class II(a). 

The Board notes that the Veteran is not shown to be entitled to service connection or treatment under any of the other possible classes of eligibility.  For instance, there could be no eligibility for Class I dental care since he is not shown to have a service-connected compensable dental condition.  (See 38 C.F.R. § 4.150).  He also does not allege, and the evidence does not otherwise suggest, that he applied for dental treatment within a year of his release from active duty, so there could be no eligibility for one-time Class II treatment for any service-connected noncompensable dental condition.  He also was not a POW, which could otherwise provide a basis of entitlement under Classes II(b) and II(c).  Other classes discussed under 38 C.F.R. § 17.161 are also not for application in the instant case. 

In sum, the Board observes that there is no evidence that the Veteran currently has any dental condition which would meet eligibility criteria for VA treatment, as none of the criteria outlined in 38 C.F.R. § 17.161 have been met.  There is also no evidence of dental trauma or that the Veteran was a POW.  Given the foregoing, the Board must find that the preponderance of the evidence is against the claim of service connection for a dental condition.   


ORDER

Entitlement to service connection for tinnitus is granted.

Entitlement to service connection for a dental condition is denied.


REMAND

In a June 2009 statement in support of claim, the Veteran asserted that he had a left eye disability due to grenade practice in service.  He later testified that he was struck in the left eye by something during grenade practice.  He has also indicated that tinnitus aggravates his left eye pain.  An August 2009 VA physician indicated that the Veteran should be evaluated by a neurologist to determine if the Veteran has a left eye disability that is related to tinnitus.  The Veteran has not been provided a VA neurological examination.  Given that the Board has granted service connection for tinnitus, he should be provided the recommended neurological examination to determine if the Veteran has any left eye disability that is caused or aggravated by his service-connected tinnitus.  

In August 2009 a VA audiologist opined that the Veteran has tinnitus as a result of military noise exposure.  At that time the Veteran's hearing acuity did not meet the criteria to be considered a hearing loss disability for VA purposes.  At his October 2017 hearing the Veteran testified that his hearing acuity had worsened since the August 2009, VA audiology examination.  The Veteran must be provided a new VA audiology examination to determine if he now has hearing loss disability as defined by VA and, if so, whether such hearing loss is related to service.

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.  Obtain copies of the Veteran's updated VA treatment records. 

2.  When the above action has been accomplished provide the Veteran a VA neurological examination.  After reviewing the Veteran's records and his reported medical history, provide an opinion as to whether it is at least as likely as not (50 percent probability or more) the Veteran has any left eye disability that was first manifested during service or that is otherwise related to service, including  the Veteran's reported exposure to grenade shrapnel.  The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran has any left eye disability that is caused or aggravated by the Veteran's service-connected tinnitus.

3.  Provide the Veteran a VA audiology examination.  If the Veteran is found to have hearing loss disability as defined by VA in either ear, provide an opinion as to whether it is at least as likely as not (50 percent probability or more) any such hearing loss disability is related to the Veteran's military service.

4.  Thereafter, readjudicate all issues on appeal.  If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review.

The appellant and his representative have 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).


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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).



______________________________________________
G. A. WASIK
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs