Citation Nr: 1802162 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 13-34 955 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety, schizophrenia, and depression, but not to include panic attacks. 2. Entitlement to service-connection for a dental disability. REPRESENTATION Appellant represented by: South Carolina Office of Veterans Affairs ATTORNEY FOR THE BOARD E. Alexander Neff, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1990 to December 1991. His awards and decorations included a National Defense Service Badge. The Board sincerely thanks him for his service to his country. This matter is before the Board of Veterans' Appeals (Board) on appeal form a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In the December 2013 VA Form 9, the Veteran requested to have a Travel Board hearing. In a September 2014 notice, the Veteran withdrew his request for a hearing before the Board. As an initial matter, regarding the Veteran's claim for service connection for PTSD, the Board notes that the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board notes that the Veteran has claimed that he was diagnosed with PTSD, depression, panic attacks, and schizophrenia. The Board notes that during the period on appeal the Veteran has been diagnosed with anxiety not otherwise specified, depression, panic disorder, and PTSD. In a January 2015 rating decision, the RO denied the Veteran's claim for panic attacks. The same month, the Veteran filed a notice of disagreement as to same, and in November 2015 the RO provided a statement of the case (SOC). Following the SOC, the Veteran did not perfect an appeal to the Board. Thus, this disability has already been considered by the RO, is final, and not currently on appeal before the Board. With consideration of the foregoing and the rule in Clemons, the Board has recharacterized the issue on appeal as above. A claim of service connection for a dental disability is also considered a claim for VA outpatient dental treatment. Mays v. Brown, 5 Vet. App. 302, 306 (1993). In dental claims, the RO adjudicates the claim for service connection and the VA Medical Center adjudicates the claim for outpatient treatment. As the current issue of service connection for a dental disability stems from an adverse determination by the RO, the dental issue addressed herein must be limited to service connection for compensation purposes only. The claim for VA outpatient dental treatment is REFERRED to the Agency of Original Jurisdiction (AOJ) for further referral to the appropriate VA medical facility. See 38 C.F.R. §§ 17.161 and 38 C.F.R. § 19.9(b) (2017). The issue of an acquired psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran is not shown to have, or during the pendency of the claim to have had, a dental disability for which compensation is payable. CONCLUSION OF LAW Service connection for a dental disability for compensation purposes is not warranted. 38 U.S.C.A. §§ 1110, 1712, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310, 3.381, 4.150, 17.161. REASONS AND BASES FOR FINDING AND CONCLUSION I. Legal Criteria A. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection, there must be evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Disorders first diagnosed after discharge may be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Disability compensation and VA outpatient dental treatment may be provided for certain specified types of service-connected dental disorders. For other types of service-connected dental disorders, the claimant may receive treatment only and not compensation. 38 U.S.C.A. § 1712; 38 C.F.R. §§ 3.381, 4.150, 17.161. VA compensation is only available for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150. The types of dental conditions covered are: loss of teeth due to bone loss of the body of the maxilla or the mandible due to trauma or disease such as osteomyelitis, but not periodontal disease. See 38 C.F.R. §§ 4.150, Diagnostic Code 9913; 17.161(a). Service connection compensation is also available for dental conditions including: chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss of the mandible, nonunion or malunion of the mandible, temporomandibular articulation and limited jaw motion, loss of the ramus, loss of the condyloid process, loss of the hard palate, loss of the maxilla, and malunion or nonunion of the maxilla. See 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. Otherwise, a veteran may be entitled to service connection for dental conditions including treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal (i.e., gum) disease, for the sole purposes of receiving VA outpatient dental services and treatment, if certain criteria are met. See 38 U.S.C.A. § 1712; 38 C.F.R. §§ 3.381, 17.161. As discussed in the above introduction section, the issue of whether the Veteran may be entitled to VA outpatient dental services and treatment must be adjudicated separately. Thus, such claim is not currently before the Board on appeal, and has been referred to the AOJ for appropriate action. In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, the Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg); (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. However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Competent medical evidence may include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence. See Gonzales v. West, 218 F, 3d, 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the evidence as appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to the claims. II. Factual Background and Analysis Considering the evidence in light of the above, the Board finds that the Veteran does not have a compensable dental disability. This is because there is no competent evidence showing that the Veteran has had any of the disabilities included under 38 C.F.R. § 4.150 during the pendency of this claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement of having a current disability is met "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim"). In January 2011, the Veteran generally claimed that he had a dental disability. In the October 2012 notice of disagreement, he elaborated that in service he underwent an incomplete root canal, and that the dentist did not fully remove all the roots from a left-side molar. Since this treatment the Veteran's "filling has come out," and he has a "thin tooth" which makes additional correction difficult. The Veteran's STRs indicated that in service that the Veteran had gross decay of the number 15 tooth, and that it appeared he underwent a root canal of the number 19 tooth. In post-service medical records it was noted in April 2000 that the Veteran had large hole in the bottom of the left molar in the context of a filling that had fallen out. In December 2007, he was noted to have had rotten tooth that needed to be extracted. In March 2008, the number 32 tooth was extracted due to periodontal disease. In February 2017, the Veteran had the number 19 tooth extracted. The clinician noted that it had one residual root. The question the Board must consider is whether any of the Veteran's tooth disabilities has been of a nature that fits the regulatory criteria for consideration of compensation. The Board finds that the evidence of record does not indicate that the Veteran has had any identifiable dental disability of a nature that is eligible for compensation under the applicable regulatory provisions. The Veteran claims that his current tooth disability is related to in-service dental care. The Board observes 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. Further, the Veteran's STRs do not otherwise demonstrate trauma to his teeth or mouth. As such, the Board finds that service connection for a dental disability is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt is not for consideration. 38 U.S.C.A. § 5107(b). The appeal must be denied. ORDER Service connection for compensation purposes for a dental disability is denied. REMAND In January 2015, the Veteran provided a stressor statement, as well as a buddy statement, that during a training exercise in July 1991, while stationed in Germany, a mechanical malfunction occurred wherein he was trapped under fallen Hawk missiles. In April 2015, the RO requested additional information regarding same, to include the unit of assignment and the location of the incident. That month, the Veteran transmitted a response to this request by fax; however, it was partially illegible. Since the Veteran's April 2015 response, no additional development regarding the claimed stressor has occurred. As such, a remand to complete the stressor verification process is necessary. The Board observes that the Veteran has not undergone a VA examination to determine the etiology of his diagnosed psychiatric disorders. For the following reasons, the Board finds that an examination is necessary to decide the claim. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In October 2014, a VA mental health clinician noted a missile-related stressor in the context of providing a diagnosis of PTSD and anxiety. In that record, the Veteran also reported that he first began to experience anxiety following an in-service missile incident. In light of this, the Board finds that the low threshold has been met for triggering the Secretary's duty to assist by providing a VA mental health examination to address the question of whether the Veteran has an acquired psychiatric disability, to not include panic attacks, that is related to his military service. Accordingly, the case is REMANDED for the following action: 1. Please provide the Veteran with the appropriate authorizations to assist him with obtaining medical records regarding the treatment of his acquired psychiatric disorder, to include PTSD, anxiety, and depression, but not panic attacks, since leaving service. Also provide him the opportunity to submit additional records in support of his claim for service connection. 2. Please request the Veteran to provide his unit of assignment at the time of the July 1991 Hawk missile incident as well as the location of the incident. 3. Thereafter, please take appropriate action to verify the Veteran's alleged stressor. In particular, the AOJ should request that JSRRC attempt to verify the alleged stressor event involving a Hawk missile hydraulic malfunction during training that lead to the Veteran being trapped under missiles while he was stationed in Germany in July 1991. 4. Please obtain any VA records that have not already been associated with the claims file. 5. After completion of steps 1 to 4, please arrange from an appropriate VA examiner to provide an examination to answer the following questions: a. Please note and discuss the psychiatric disorders (other than panic attacks) that the Veteran has been diagnosed with since he filed the current claim in January 2011. In this list, please also include the Veteran's diagnoses of PTSD, anxiety, and depression. Please also consider the Veteran's claim that he has schizophrenia; and whether he meets the criteria for a diagnosis for same. b. The examiner is then requested to address whether it is at least as likely as not (a 50% or greater probability) that any of the Veteran's psychiatric disorders diagnosed in (a), other than panic attacks, are related to service? Please consider and discuss as necessary a March 1999 prison medical record where the Veteran was diagnosed with PTSD in the context of a post-service prison stabbing. The examiner is also asked to consider and discuss as necessary the Board's finding that the Veteran statements with respect to his mental health symptoms lack credibility. This is in light of prison medical records observing that the Veteran was possibly benefit seeking, malingering, being manipulative, providing vague responses, and embellishing his symptoms. Also, in the March 2014 Social Security Administration mental health examination, the Veteran's statements regarding the severity of his anxiety were found to be partially credible due to embellishment. Further, the record demonstrates that the Veteran has provided inconsistent statements as to his claimed stressor. Notably, in May 2014 he reported that a missile almost fell on him; however, in January 2015 he claimed that he was trapped under fallen missiles. In May 2014, he reported he was never involved in combat; however, in September 2014 he alluded to loading missiles during Operation Desert Storm in 1991. The claims file should be made available to and reviewed by the examiner. All indicated tests and studies should be undertaken. The examiner must explain the rationale for all opinions rendered, citing to supporting factual data and/or medical literature, as appropriate. 6. Finally, please readjudicate the claim. If the claim remains denied, issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The Veteran 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 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). ______________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs