Citation Nr: 1804103 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 17-12 556 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for traumatic brain injury (TBI). 2. Entitlement to service connection for headaches. 3. Whether new and material evidence has been submitted to reopen a previously denied claim for entitlement to service connection for dental trauma for compensation purposes, and if so entitlement to that claim. 4. Whether new and material evidence has been submitted to reopen a previously denied claim for entitlement to service connection for bilateral hearing loss, and if so entitlement to that claim. 5. Whether new and material evidence has been submitted to reopen a previously denied claim for entitlement to service connection for tinnitus, and if so entitlement to that claim. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Price, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Marine Corps from September 1953 to October 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2014 and May 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified at a travel board hearing in November 2017 before the undersigned Veterans Law Judge. At the hearing, a wholly competent representative assisted the Veteran, and a transcript of the hearing has been associated with the file. 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 and tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. During the November 2017 Board hearing, the Veteran indicated that he wished to withdraw his service connection claims for traumatic brain injury and headaches. 2. In an April 2005 rating decision, the RO denied entitlement to service connection for dental trauma, the Veteran did not initiate an appeal, and no pertinent exception to finality applies. 3. A private opinion indicating the damage to his teeth in service was caused by some trauma or injury constitutes new and material evidence for his service connection claim for dental trauma. 4. In a September 2008 rating decision, the RO denied entitlement to service connection for bilateral hearing loss and tinnitus, the Veteran did not initiate an appeal, and no pertinent exception to finality applies. 5. Testimony indicating his hearing loss and tinnitus began in service relates to an unestablished fact necessary to substantiate the Veteran's claim of service connection for those issues. 6. The Veteran does not have a dental disability for which compensation can be authorized. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal on the issues of entitlement to service connection for a TBI and headaches are met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The April 2005 and September 2008 rating decisions that denied service connection for dental trauma, and bilateral hearing loss and tinnitus, respectively, are final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 3. New and material evidence has been received to reopen the claims of entitlement to service connection for dental trauma, bilateral hearing loss and tinnitus. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 4. The criteria for establishing service connection for dental trauma of five front teeth (#7, #8, #9, #10 and #11) for compensation purposes have not been met. 38 U.S.C. § 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.381, 4.150 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist Neither the Veteran nor his representative has raised any other 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). II. Withdrawal Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2017). Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204 (2017). During the November 2017 travel board hearing, the Veteran indicated that he wished to withdraw his service connection claims for a TBI and headaches, as they are part and parcel to his PTSD claim. The withdrawal is documented in the hearing transcript, which has been associated with the claims file. Hence, there remains no allegation of error of fact or law for appellate consideration in regard to these claims. Accordingly, the Board does not have jurisdiction to review the appeal of entitlement to service connection for a TBI and headaches. III. Petition to Reopen Applicable law provides that an RO decision that is not appealed becomes final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Once a decision becomes final, new and material evidence is required to reopen the claim that was denied. 38 U.S.C. § 5108 provides that "if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." Regulations provide that "new" evidence is existing evidence not previously submitted to agency decision-makers. "Material" evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. "New and material evidence" can neither be cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a). VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of a claim on any basis in order to determine whether a claim should be reopened and readjudicated on the merits. Evans v. Brown, 9 Vet. App. 273, 283 (1996). The law provides that evidence proffered by the Veteran to reopen his claim is presumed credible for the limited purpose of ascertaining its materiality. See Justus v. Principi, 3 Vet. App. 510, 512 (1992). In April 2005, the RO denied entitlement to service connection for dental trauma. At that time, the RO considered the Veteran's service treatment records, which indicated he had five teeth extracted, but did not show he experienced a traumatic injury to his teeth prior to the procedure. His separation exam performed in October 1955 did not indicate any dental trauma had occurred. Also considered were available private treatment records, which did not indicate the Veteran experienced any dental trauma in service. Based on the foregoing, the RO denied service connection for dental trauma because there was no evidence of any injury during service. In September 2008, the RO denied entitlement to service connection for bilateral hearing loss and tinnitus. At that time, the RO considered the Veteran's service treatment records, which were negative for any complaints of or treatment for hearing loss or tinnitus. Also considered were available VA treatment records, which indicated he had a current diagnosis of bilateral high frequency hearing loss and tinnitus, but no opinion as to etiology. Based on the foregoing, the RO denied service connection for bilateral hearing loss and tinnitus because there was no evidence showing his current disabilities were incurred in or related to his active duty service. The April 2005 and September 2008 rating decisions, with notice of appellate rights, were mailed to the Veteran's address of record and were not returned as undeliverable. Although notified of the denials, the Veteran did not initiate an appeal or submit new and material evidence relevant to his claims during the one-year appeal period following the issuance of both rating decisions. See 38 C.F.R. § 3.156(b). Accordingly, the April 2005 and September 2008 rating decisions became final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). As noted above, a final decision cannot be reopened unless new and material evidence is presented. In this case, an unestablished fact necessary to substantiate the claim for dental trauma is evidence of an injury during service or a medical nexus connecting the loss of his teeth to an injury he suffered during service. As for hearing loss and tinnitus, evidence showing the disabilities were incurred in or the result of service would substantiate the claims. The Veteran submitted a petition to reopen his claims for hearing loss and tinnitus in May 2014 and for dental trauma in April 2015. Evidence associated with the claims file following the April 2005 and September 2008 rating decisions includes statements in support of his claim, his hearing testimony, VA examinations, and various treatment records. Within his statements, he asserted that he had no other dental condition or disease that would cause the loss or prompt the removal of several teeth. He also noted that his hearing loss and tinnitus began in service and were caused by loud noise from the gun range and machinery used while he was on active duty. VA treatment records do not provide any insight into the cause or etiology of the Veteran's hearing loss, tinnitus, or dental condition. The Veteran underwent a dental and oral VA examination in November 2007; x-rays showed sockets from recently removed teeth at #10 and #11, a fracture of the crown of tooth #8, and crown fractured off of tooth #9, with a retained root in place. The examiner indicated that the damage appeared to be due to trauma. The Veteran was afforded a VA examination for hearing loss and tinnitus in August 2014; however, the examiner was unable to test puretone frequencies and found the results to be inconsistent and unreliable. Speech recognition testing was performed, but the examiner found that use of the Veteran's scores would be inappropriate. Ultimately, the examiner was unable to provide a medical opinion regarding etiology of the Veteran's hearing loss without resorting to speculation because his exam results were inconsistent and unreliable and he appeared to exaggerate his hearing level. During the November 2017 hearing, he testified that after entering a bar while on patrol, he was hit with a beer bottle, which knocked out five of his front teeth. A dentist later removed several teeth and roots. The credibility of the above evidence is presumed for the limited purpose of assessing whether the evidence is material. Testimony indicating his hearing loss and tinnitus began in service relates to an unestablished fact necessary to substantiate the Veteran's claim of service connection for those issues. A private opinion indicating the damage to his teeth in service was caused by some trauma or injury could substantiate his service connection claim for dental trauma. This newly received evidence is presumed credible for purposes of reopening these claims. Under these circumstances, the Board finds that new and material evidence has been received and the petitions to reopen claims of entitlement to service connection for dental trauma, hearing loss and tinnitus, are granted. Service connection for dental trauma is discussed below; however, because there is insufficient evidence to render a decision on hearing loss and tinnitus at this time, both claims must be remanded for additional development and are addressed in the Remand portion of this decision. III. Dental Trauma The Veteran contends that his teeth were removed in service due to trauma incurred following an injury during service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Under current VA regulations, compensation is only available for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150, including conditions of the mandible, maxilla, ramus, condyloid process, coronoid process, hard palate, and loss of teeth due to loss of substance of the body of the maxilla or mandible. 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 disease, for the sole purposes of receiving VA outpatient dental services and treatment, if certain criteria are met. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 17.161. Rating activity should consider each defective or missing tooth and each disease of the teeth and periodontal tissues separately to determine whether the condition was incurred or aggravated in line of duty during active service and, when applicable, to determine whether the condition is due to combat or other in-service trauma, or whether the veteran was interned as a prisoner of war. 38 C.F.R. § 3.381(b). Service treatment records indicate the Veteran underwent removal of four teeth (#8, #9, #10 and #11) in September 1954 and #7 in October 1958. Records were silent as to any complaints or diagnosis of any dental trauma. In addition, in an October 1955 separation examination, the Veteran's mouth and throat were found to be clinically normal and although the missing teeth were indicated, there was no notation of trauma. As noted above, the Veteran underwent a VA examination in November 2007; x-rays showed sockets from recently removed teeth at #10 and #11, a fracture of the crown of tooth #8, and crown fractured off of tooth #9, with a retained root in place. The examiner indicated that the damage appeared to be due to trauma; he also noted that the Veteran was seen the same day for a swollen wrist, which was injured in a fight. A December 2007 rating decision granted service connection for dental treatment only based on the above examiner's opinion that the extraction of his teeth in service was due to trauma. Post-service treatment records do not provide any insight into the Veteran's current dental conditions and/or their cause. During the April 2015 VA examination for oral and dental conditions, the examiner noted that the Veteran had advanced periodontitis involving all remaining teeth (other than #7-11) and the abutments were abscessed, causing extreme discomfort. X-rays showed periodontal abscesses at #19, 20, and 30. The examiner did not indicate the Veteran had any other dental conditions. The Veteran testified at the November 2017 Board hearing that after entering a bar while on patrol, he was hit in the mouth with a beer bottle. He went to the dentist and was told his teeth were severely damaged. His teeth were removed and he was given a partial plate. Another dentist made him a gold plate while he was stationed in Alaska. Although it is conceivable the Veteran has required post-service dental treatment, the evidence does not show he has a condition or suffered an injury for which compensation may be granted. The Veteran has not been shown to have any conditions of the mandible, maxilla, ramus, condyloid process, coronoid process, hard palate, or loss of teeth due to loss of substance of the body of the maxilla or mandible. See 38 C.F.R. §§ 3.381(b), 4.150, Diagnostic Codes 9900-9916. See also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability . . . in the absence of a proof of present disability there can be no claim."). In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for compensation for dental trauma, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER The claim of entitlement to service connection for a TBI is dismissed. The claim of entitlement to service connection for headaches is dismissed. New and material evidence having been received, the petition to reopen a claim for entitlement to service connection for dental trauma is granted. New and material evidence having been received, the petition to reopen a claim for entitlement to service connection for bilateral hearing loss is granted. New and material evidence having been received, the petition to reopen a claim for entitlement to service connection for tinnitus is granted. Service connection for dental trauma is denied. REMAND The Veteran asserts that his bilateral hearing loss and tinnitus disabilities are a result of his in-service acoustic trauma. The Veteran was afforded a VA audiological examination in August 2014; however, the Board finds that an additional VA audiological examination is necessary. In support of his claim, the Veteran testified at the hearing that as military police, he was exposed to noise from weapon blasts in boot camp. He currently wears hearing aids that do not offer much relief. The August 2014 examiner was unable to provide an opinion due to inconsistent and unreliable testing, as well as exaggerated symptoms reported by the Veteran. In fact, the examiner recommended that he be re-examined in order to determine if more accurate thresholds could be obtained. A follow-up examination was not completed. Ultimately, the examiner concluded that she could not determine if his current hearing loss was a result of service without resorting to speculation. The examiner also noted that since the hearing test results were inconsistent, it was unlikely that tinnitus was caused by military noise exposure. The Board finds the August 2014 VA examination to be insufficient. Given the current diagnoses, the Veteran's credible statements regarding in-service noise exposure, and the possibility of a relation between the two, the Veteran should be given another opportunity to be examined to determine the current nature and likely etiology of his bilateral hearing loss and tinnitus disabilities. Therefore, remand is warranted for an adequate examination. The Veteran is encouraged to participate fully and genuinely with the ordered audiological examination as the Board finds that a thorough and accurate examination is critical to his bilateral hearing loss and tinnitus claims. Any outstanding treatment records must be obtained and associated with the claims file. 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 all outstanding VA treatment records relating to the Veteran's claim. 2. Afford the Veteran a new VA audiological examination, in order to ascertain the nature and etiology of his bilateral hearing loss and tinnitus. The claims folder and a copy of this REMAND should be reviewed by the examiner. The examiner should state whether it is at least as likely as not (i.e., a likelihood of 50 percent or greater) that the Veteran's current bilateral hearing loss and tinnitus may be attributed to his exposure to acoustic trauma in service. The examiner should provide a thorough explanation for all opinions rendered. If any opinion requested cannot be rendered, he or she must thoroughly explain the reasons. 3. Thereafter, and following any other indicated development, the AOJ should readjudicate the issues on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided a Supplemental Statement of the Case and afforded an applicable time to respond thereto. 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 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. §§ 5109B, 7112 (2012). ______________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs