Citation Nr: 1801939 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 02-18 309 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a low back disability, to include status-post lumbar laminectomy L3-4, L4-5, with discectomy, L3-4 and L4-5. 2. Entitlement to a temporary total evaluation pursuant to 38 C.F.R. § 4.29 and/or § 4.30 due to low back disability. 3. Entitlement to service connection for dental disability for the purpose of obtaining VA outpatient dental treatment. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The record reflects the Veteran retired from the Air Force Reserves after more than 20 years of honorable service. During these 20 years, the Veteran had several periods of active duty for training (ACDUTRA) and inactive duty for training. In addition, the record reflects she had additional service in the Army Reserve during this period, to include a period of ACDUTRA from September to December 1978. This case comes before the Board of Veterans' Appeals (Board) originally on appeal from a September 2001 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The record reflects this case was previously before the Board on multiple occasions, most recently in April 2015 when it was remanded for further development to include a competent medical examination and opinion for the low back claim. Such a competent medical was promulgated in September 2017, and all other development directed by the Board's prior remands appears to be substantially accomplished. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The case has now been returned been returned to the Board for additional appellate consideration. FINDINGS OF FACT 1. The preponderance of the competent medical and other evidence of record is against a finding the Veteran has a current low back disability as a result of military service. 2. The law does not provide for the assignment of temporary total rating(s) for nonservice-connected disability. 3. The Veteran does not belong to any of the legally specified classes of veterans entitled to VA dental treatment. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for a low back disability, to include status-post lumbar laminectomy L3-4, L4-5, with discectomy, L3-4 and L4-5, are not met. 38 U.S.C.A. §§ 101, 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.6, 3.303 (2017). 2. The criteria for a temporary total evaluation pursuant to 38 C.F.R. § 4.29 and/or § 4.30 due to low back disability are not met. 38 U.S.C.A. §§ 1151, 5107 (West 2014); 38 C.F.R. §§ 4.29, 4.30 (2017). 3. The criteria for a grant of service connection for a dental disability for the purposes of obtaining VA outpatient dental treatment are not met. 38 U.S.C.A. §§ 1110, 1131, 1712, 5107 (West 2014); 38 C.F.R. §§ 3.381, 4.150, 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. §§ 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In this case, the Board acknowledges the Veteran has contended the law supports the benefits sought on appeal. However, she has not identified any deficiency with respect to the notification she has been provided with respect to her appellate claims. Further, she has not identified any relevant evidence that has not been obtained or requested, or any other deficiency regarding the assistance has been provided in this case. In pertinent part, a December 2017 written statement from her accredited representative noted that a June 2017 VA examiner's opinion was against her claim of service connection for a low back disability, but did not identify any error with respect to that examiner's opinion nor did she challenge the qualifications of that examiner to provide competent medical evidence. Accordingly, the Board need not search for, or address, any such argument. The Board will therefore proceed to the merits of the appeal. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). 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). Back Disability 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 this case, the Veteran seeks service connection for a low back disability claimed to have been incurred during a period of ACDUTRA. Active service includes any period of ACDUTRA during which the individual was disabled from a disease or an injury incurred in the line of duty, or a period of inactive duty training during which the veteran was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). Further, ACDUTRA includes full-time duty in the Armed Forces performed by the Reserves for training purposes. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). Inactive duty training includes duty, other than full-time duty, prescribed for the Reserves. 38 U.S.C. § 101(23)(A). Reserves includes the National Guard. 38 U.S.C. § 101(26), (27). Certain evidentiary presumptions - such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence for certain diseases, which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service - are provided by law to assist veterans in establishing service connection for a disability or disabilities. 38 U.S.C. §§ 101, 1112; 38 C.F.R. § 3.304(b), 3.306, 3.307, 3.309. However, the advantages of these evidentiary presumptions do not extend to those who claim service connection based on a period of ACDUTRA or inactive duty training. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (Noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on ACDUTRA and had not established any service-connected disabilities from that period); McManaway v. West, 13 Vet. App. 60, 67 (1999) (Citing Paulson, 7 Vet. App. at 469-70, for the proposition that, 'if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim.'). In this case, the Veteran's service treatment records show that she sought treatment on multiple occasions for back problems from December 1980 and September 1990, during which time she was given an assessment of lumbar stain in December 1989 and mechanical low back pain in September 1990. The record indicates that on January 30, 1998, while working as a civilian, the Veteran incurred a back injury. Subsequent service treatment records dated in June 1998 and May 2000, during periods of ACDUTRA, document her additional reports of low back symptomatology, and diagnoses of chronic lumbosacral strain, herniated lumbar disc and chronic pain syndrome in May 2000. In statements received in February 2015, the Veteran claimed that her January 30, 1998, injury occurred during a period of ACDUTRA. She also asserted that the back disorder resulting from her January 1998 injury was made worse or aggravated beyond the normal progression by her air service. Thus, the Veteran's statements have raised the implicit argument of whether any back disorder incurred due to the January 1998 incident was aggravated by her subsequent periods of air service. The Board previously determined that competent medical evidence was required to support the Veteran's claim, and she has not contested that determination. Here, nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion. Consequently, her contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). No competent medical opinion is of record which supports the Veteran's claim. The Board acknowledges that a September 2015 VA examiner provided an opinion against the Veteran's low back disability being due to her 1980 to 1998 period of service. However, the examiner indicated at that time she could not provide an opinion regarding the period subsequent to her 1998 injury. As such, it does not appear this opinion is adequate for resolution of this claim. Nevertheless, the examiner corrected this deficiency in the subsequent June 2017 opinion. The Board notes that the VA examiner was familiar with the Veteran's medical history from review of the VA claims folder, and accurately summarized pertinent findings regarding the low back in the June 2017 medical opinion. Further, the examiner's opinion was not expressed in speculative or equivocal language, and was supported by stated rationale with reference to the documented medical findings. Specifically, the VA examiner concluded in the June 2017 opinion that the condition claimed was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. After detailing pertinent findings in the medical record, the examiner stated that there is no evidence of back injury or pain while on active duty from September to December 1978, and there was no diagnosis of herniated disc prior to her back injury in 1998, and the Veteran was placed on a profile after the injury in 1998 with no evidence of further trauma in the Guard or worsening of her symptoms, it is less likely than not that her current back disorder began during, or was aggravated beyond natural progression by a period of ACDUTRA or inactive duty training, or any other incident therein. As noted above, the Veteran has not challenged the adequacy of the June 2017 VA examiner's opinions, or the qualifications of that examiner to provide competent medical evidence in this case. Moreover, no competent medical evidence is of record which refutes this VA examiner's opinion. Therefore, the Board finds this opinion is entitled to significant probative value in the instant case. For these reasons, the Board concludes that preponderance of the competent medical and other evidence of record is against a finding the Veteran has a current low back disability as a result of military service. As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Therefore, the benefit sought on appeal with respect to this claim must be denied. Temporary Total Rating A total disability rating will be assigned when it is established that one or more service-connected disabilities has required hospital treatment in a VA or an approved hospital for a period in excess of 21 days or hospital observation at VA expense for a service-connected disability for a period in excess of 21 days. 38 C.F.R. § 4.29. A temporary total rating will also be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge or outpatient release that treatment of one or more service-connected disabilities resulted in surgery necessitating at least one month of convalescence; surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body case, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches; or immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30. In this case, the record reflects the Veteran is seeking a temporary total evaluation pursuant to 38 C.F.R. §§ 4.29 and/or 4.30 due to her low back disability. However, as detailed above, the Board has determined that service connection is not warranted for this disability. The law does not provide for the assignment of a temporary total evaluation for nonservice-connected disability. Consequently, this claim must be denied as a matter of law. Dental Treatment Service connection for treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease will be considered service connected solely for the purpose of establishing eligibility for outpatient dental treatment, if they are manifested after 180 days of service, in accordance with 38 C.F.R. §§ 3.381, 17.161. Outpatient dental treatment may be authorized by the Chief, VA Dental Service, as set forth in 38 C.F.R. § 17.161; 38 U.S.C.A § 1712. Outpatient dental treatment may be authorized by the Chief, Dental Service, for beneficiaries defined in 38 U.S.C. § 1712 (b) and 38 C.F.R. § 17.93 to the extent prescribed and in accordance with the applicable classification and provisions. (a) Class I. Those having a service-connected compensable dental disability or condition, may be authorized any dental treatment indicated as reasonably necessary to maintain oral health and masticatory function. There is no time limitation for making application for treatment and no restriction as to the number of repeat episodes of treatment. (b) Class II. Those having a service-connected noncompensable dental condition or disability shown to have been in existence at the time of a discharge from active service after September 30, 1981, may be eligible for the one-time correction of the service connected noncompensable condition but only if service was during the Persian Gulf Era, discharge was under conditions other than dishonorable, the application for treatment was within 180 days of such discharge, the certificate of discharge or release not bearing a certification that the Veteran was provided, within the 90-day period immediately before discharge, a complete dental examination (including dental X-rays) and all appropriate dental treatment indicated by the examination to be needed, and that a VA dental examination was completed within six months of discharge or release unless delayed through no fault of the Veteran. (c) Class II(a). Those having a service-connected noncompensable dental condition or disability adjudicated as resulting from combat wounds or service trauma may be authorized any treatment indicated as reasonably necessary for the correction of such service-connected noncompensable condition or disability. (d) Class II(b). Those having a service-connected noncompensable dental condition or disability and who had been detained or interned as prisoners of war for a period of less than 90 days may be authorized any treatment as reasonably necessary for the correction of such service-connected dental condition or disability. (e) Class II(c). Those who were prisoners of war for 90 days or more, as determined by the concerned military service department, may be authorized any needed dental treatment. (f) Any veteran who had made prior application for and received dental treatment from the Department of Veterans Affairs for noncompensable dental conditions, but was denied replacement of missing teeth which were lost during any period of service prior to his/her last period of service may be authorized such previously denied benefits under the following conditions: (1) Application for such retroactive benefits is made within one year of April 5, 1983. (2) Existing Department of Veterans Affairs records reflect the prior denial of the claim. All Class IIR (Retroactive) treatment authorized will be completed on a fee basis status. (g) Class III. Those having a dental condition professionally determined to be aggravating disability from an associated service-connected condition or disability may be authorized dental treatment for only those dental conditions which, in sound professional judgment, are having a direct and material detrimental effect upon the associated basic condition or disability. (h) Class IV. Those whose service-connected disabilities are rated at 100 percent by schedular evaluation or who are entitled to the 100 percent rate by reason of individual unemployability may be authorized any needed dental treatment. (i) Class V. A veteran who is participating in a rehabilitation program under 38 U.S.C. chapter 31 may be authorized such dental services as are professionally determined necessary for any of the reasons enumerated in §17.47(g). (j) Class VI. Any veterans scheduled for admission or otherwise receiving care and services under chapter 17 of 38 U.S.C. may receive outpatient dental care which is medically necessary, i.e., is for dental condition clinically determined to be complicating a medical condition currently under treatment. 38 C.F.R. § 17.161. With respect to Class I, the record does not reflect the Veteran has a dental disability subject to compensable service connection, as set forth under 38 C.F.R. § 4.150. As such, the veteran does not satisfy Class I criteria. 38 C.F.R. § 17.161(a). The Board acknowledges that the December 2017 written statement from the Veteran's representative indicated she was seeking treatment pursuant to the Class II criteria, as it was stated it did not appear the Veteran was provided a discharge dental examination for either period of service, and, as such, service connection for a dental condition for dental treatment purposes should be granted. However, the September to December 1978 period of ACDUTRA for the Army Reserve was clearly prior to September 30, 1981. Another certificate of discharge reflects her retirement from the Air Force Reserve was effective in June 1999. As her original application for VA benefits was received in August 2000, the record does not reflect she made an application for dental treatment within 180 days of discharge. Consequently, the Board concludes she does not satisfy the criteria for Class II. The Board further notes that the evidence does not demonstrate that the Veteran can otherwise avail herself of any of the other categories by which VA dental treatment can be provided under Class II. In pertinent part, the Veteran has not alleged, and the evidence does not show, that she suffered dental trauma in service to include from combat, which is required for Class II(a). To the extent that she relates in-service dental trauma to her claimed back disability, service connection for the back disability has been denied in the instant decision. The Board notes that VA General Counsel has held that the term "service trauma" does not include the intended effects of treatment provided during a veteran's military service. VAOPGCPREC 5-97 (Jan. 22, 1997). In its opinion on the subject, the General Counsel noted, among other things, that the term "trauma" is ordinarily defined as a "physical injury caused by a blow, or fall . . ." or as a "wound; an injury inflicted more or less suddenly, by some physical agent." In other words, an injury. The General Counsel noted that treatment is given in order to remedy the effects of disease or injury, that dental treatment is not synonymous with dental trauma, and that it would be anomalous to conclude that the remedy for an injury or disease constituted further injury. As such, the Veteran does not meet the Class II(a) criteria for service connection for a noncompensable dental condition which resulted from combat wounds or other service trauma. 38 C.F.R. § 17.161(c); 38 U.S.C.A. § 1712 (a)(1)(B). The Board also observes that Class II(b) and Class II(c) require that the claimant be a prisoner of war, a status not accruing to the Veteran in this case. 38 C.F.R. § 17.161 (d), (e). Class IIR (Retroactive) eligibility requires that a prior application for VA dental treatment have been made and such treatment provided. 38 C.F.R. § 17.161(f). A review of the record does not show that the Veteran had sought VA dental treatment prior to the current claim. The Board further observes that the Veteran's only service-connected disability is hypertension, and there is no evidence demonstrating that the Veteran has a dental condition that impairs or aggravates this disability (Class III). 38 C.F.R. § 17.161(g). The Board also notes that the Veteran's hypertension is rated as 10 percent disabling; i.e., her service connected disabilities are not rated as 100 percent disabling by schedular evaluation or due to individual unemployability (Class IV). Moreover, there is nothing in the record which reflects she is a Chapter 31 vocational rehabilitation trainee (Class V). 38 C.F.R. § 17.161 (h), (i). Finally, the record does not reflect she is receiving, or is scheduled to receive, VA care and treatment under 38 U.S.C.A. Chapter 17 (Class VI). See 38 C.F.R. § 17.161 (j). In view of the foregoing, the Board must find that the criteria for service connection for a dental condition, for the purposes of entitlement to VA outpatient dental treatment, have not been met. Therefore, the benefit sought on appeal must be denied. ORDER Service connection for a low back disability, to include status-post lumbar laminectomy L3-4, L4-5, with discectomy, L3-4 and L4-5, is denied. A temporary total evaluation pursuant to 38 C.F.R. § 4.29 and/or § 4.30 due to low back disability is denied. Service connection for a dental disability for the purposes of obtaining VA outpatient dental treatment is denied. ____________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs