Citation Nr: 1804704 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 03-15 899A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for a dental disability for the purpose of obtaining VA compensation. 2. Entitlement to service connection for arthritis of the cervical spine. 3. Entitlement to service connection for arthritis of the right hand. 4. Entitlement to service connection for arthritis of the left hand. 5. Entitlement to service connection for a low back disorder. 6. Entitlement to service connection for a right ankle disorder. 7. Entitlement to service connection for a left ankle disorder. 8. Entitlement to service connection for a skin condition, to include cysts on the knees. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD RLBJ, Associate Counsel INTRODUCTION The Veteran served honorably in the United States Army from October 1978 to October 1998. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Baltimore, Maryland. (Hereinafter, the Agency of Original Jurisdiction (AOJ).) Testimony was received from the Veteran during a September 2017 videoconference hearing before the undersigned Veteran's Law Judge (VLJ). A transcript of that testimony is found on the Veteran's Benefit Management System (VBMS). The Veteran's entire claims file is found on the VBMS and/or Legacy Content Manager (LCM) databases. The issues on appeal originally included entitlement to service connection for a skin condition, to include cysts on the knees. At the September 2017 Board hearing, the undersigned VLJ informed and/or reminded the Veteran that the AOJ had granted service connection for bilateral popliteal fossa cysts in March 2015. The March 2015 AOJ decision constitutes a full grant of that issue; therefore, it no longer remains on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). The issue(s) of arthritis of the cervical spine, right hand, and left hand are addressed in the REMAND portion. Likewise, the issue(s) of a low back, right ankle, and left ankle disorders are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran does not have a current dental disability for VA compensation purposes. 2. The Veteran has a current dental condition for which outpatient treatment is warranted. CONCLUSIONS OF LAW 1. A compensable dental disability was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.381, 4.150, 17.161 (2017). 2. The criteria for service connection for loss of teeth, for purposes of outpatient treatment have been met. 38 U.S.C.A. §§ 1131, 1721, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.381, 4.150, 17.161 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) provides that VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran's claims predate the VCAA and its accompanying duties: the record reflects that the Veteran may have filed her claims on October 23, 1998. During the nineteen-year appellate course, the Veteran's claims were subject to various appellate statuses, to include denial and re-opening. There has been no allegation of any error in the VCAA notice provided to the Veteran during the appeal period. See Shinseki v. Sanders, 556 U.S. 396 (2009) (an error in VCAA notice should not be presumed prejudicial and the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis). With respect to the duty to assist, the RO has obtained the Veteran's service treatment records (STRs), military personnel records (MPRs), VA outpatient treatment records, private medical evidence as authorized by the Veteran, and VA examinations. For her part, the Veteran has submitted personal statements, argument from her representative, and additional private medical evidence. She also presented pertinent testimony at a hearing before the Board in September 2017. The Veteran has not identified any additional, outstanding evidence that is relevant to her service-connection claim(s). For the claims listed on the title page, the Veteran underwent VA examinations in April 2003 (cervical spine, low back, hands, and ankles) and December 2013 (dental) to determine the nature and etiology of her various conditions. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). Unfortunately, only the December 2013 (dental) VA examination resulted in an adequate opinion upon which the Board can render a decision at this point of the appellate process. The dental opinion was thorough, supported by explanations, based on a review of the claims folder, and supported by clinical evidence of record. The medical provider considered the Veteran's lay assertions. As such, there is no basis for any further VA examination or opinion as to the Veteran's dental compensation claim. However, new VA examinations must be scheduled for the arthritis of the cervical spine, right hand, and left hand. Adequate VA examinations are needed for the low back, right ankle, and left ankle claims as well. With respect to the Veteran's dental compensation claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016). Moreover, neither the Veteran nor her representative has advanced any procedural arguments in relation to VA's duties to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances . . . we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran . . ."). Accordingly, the Board is satisfied that the AOJ has provided all assistance required by the VCAA for the dental claim decided below. 38 U.S.C.A. § 5103A (West 2014). II. Governing Laws for Service Connection The Veteran currently seeks entitlement to compensation for a dental disability. Through testimony to the Board in September 2017, the Veteran averred that her dental disability began at Yakota Air Base, Japan in 1983. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007). That said, the Board has thoroughly reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence pertinent to the claim on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). III. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014). Generally, the evidence must 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, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309 (a). See 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). A. Loss of Teeth With respect to the Veteran's dental claim, service connection for compensation purposes can be established only for the specific types of dental and oral conditions listed under 38 C.F.R. § 4.150 (2017), 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 due to loss of substance of the body of the maxilla or mandible. See Simmington v. West, 11 Vet. App. 41 (1998). For loss of teeth, bone loss through trauma or disease such as due to osteomyelitis must be shown for purposes of compensability. The loss of the alveolar process as a result of periodontal disease is not considered disabling. See 38 C.F.R. § 4.150, Note to Diagnostic Code 9913. Based on the evidence of record, service connection is not warranted under 38 C.F.R. § 4.150, as there is no indication that the Veteran's claimed disorder involves symptoms consistent with loss of substance of the body of the mandible or bone loss in the maxilla or mandible region. On the contrary, a VA examiner did not check boxes corresponding to loss of any portion of the mandible or maxilla. The remainder of the evidence is negative for any loss of substance of the body of the mandible or maxilla. The Veteran's service treatment records indicate that she had loss of teeth during service. However, there is no indication that the Veteran's dental condition involved anything like impairment to the mandible or bone loss in the maxilla or mandible region(s). The Veteran has never claimed that she suffers actual bone loss or other maxillary impairment, nor has any treatment record indicated such impairment. Ultimately, service connection may not be established for compensation purposes for missing or damaged teeth. Accordingly, the Board finds that entitlement to VA compensation benefits for a dental disorder is not warranted. Next, the Board considers whether service connection may be established for the purpose of outpatient dental treatment, based on the criteria set forth in 38 C.F.R. § 3.381. See Mays v. Brown, 5 Vet. App. 302 (1993); see also Douglas v. Derwinski, 2 Vet. App. 435, 440 (1992). Service connection for purposes of outpatient dental treatment may be granted for a dental condition of any tooth and/or and periodontal tissue shown by the evidence to have been incurred in or aggravated by service, so long as the veteran falls under one of a number of specific classifications: * Class I: Those having a service-connected compensable dental disability or condition; * Class II: Those having a service-connected noncompensable dental condition or disability shown to have been in existence at time of discharge or release from active service; * Class II(a): Those having a service-connected noncompensable dental condition or disability adjudicated as resulting from combat wounds or service trauma; * Class II(b): Homeless and other enrolled veterans eligible for a one-time course of dental care under 38 U.S.C. 2062; * Class II(c): Those who were prisoners of war, as determined by the concerned military service department; * 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; * Class IV: Those whose service-connected disabilities are rated at 100% by schedular evaluation or who are entitled to the 100% rate by reason of individual unemployability; and, * Class V: Those participating in a rehabilitation program under 38 U.S.C. chapter 31, and dental services as are professionally determined necessary for any of the reasons enumerated in § 17.47(g). See 38 U.S.C.A. § 1712; 38 C.F.R. § 17.161 (2017). The December 2012 VA provider remarked that the Veteran's recurrent carries were most likely attributed to GERD, Sjogren's syndrome , and sarcoidosis. The resultant, acidic oral environment resulted in the loss of all maxillary dentition, to include the eventual loss of all remaining mandibular teeth. The Board observes that service connection is current in effect for Sjogren's syndrome and asthma with a history of sarcoidosis. Based on the evidence of record, service connection for purposes of outpatient dental treatment is warranted because the Veteran's condition is secondary to her service-connected sarcoidosis and Sjogren's syndrome. Therefore, the Veteran is classified under Class III, and service connection is warranted for the limited purpose of outpatient treatment. In addition to the dental claim just resolved, the Board will address dental issues raised by the Veteran during her September 2017 testimony. In May 2017, the AOJ denied the Veteran temporary total evaluations. The AOJ's denial was necessary because the Veteran was not service-connected for a dental disability at the time of the surgery. During her September 2017 hearing testimony, the Veteran brought to the Board's attention her request for temporary 100 percent evaluation(s) for her period of surgical intervention and recovery. The Veteran is advised that, to vest the Board with jurisdiction over these issues, a timely Substantive Appeal (completed and signed VA Form 9 or equivalent) must be filed after issuance of a Statement of the Case. See 38 C.F.R. § 20.202 (2017). As a substantive appeal was not filed within 60 days of the May 2017 SOC, the Board will not take jurisdiction over these issue addressed in the May 2017 SOC. ORDER Service connection for loss of teeth, for purposes of compensation, is denied. Service connection for loss of teeth, for purposes of outpatient treatment, is granted. REMAND Upon review of the record, the Board concludes that further evidentiary development is necessary. Although the Board sincerely regrets this delay and is appreciative of the Veteran's service to her country, a remand is necessary to ensure VA provides the Veteran with appropriate process and assistance in developing her claims prior to final adjudication. Arthritis of the cervical spine In her May 2002 Notice of Disagreement (NOD), the Veteran indicates that there were multiple active duty events that may have led to her current arthritic neck disorder, dating back to 1994. The Veteran's STRs indicate cervical strain in 1991 and April 1994. A 2001 VA examination report supplied a non-verified (x-ray) history of cervical arthritis. After review of the claims file in April 2003, a VA provider noted a previous diagnoses of cervical strain. The provider also noted complaints of recurrent neck pain. However, the Veteran has recently asserted that her arthritis is either due to, or aggravated by, her sarcoidosis. On Remand, the Veteran should be afforded an examination to ascertain whether her sarcoidosis may be associated with or aggravating her arthritis. Arthritis of the Right and Left Hand In her May 2002 NOD, the Veteran posits that her doctor has identified bilateral arthritis of the hands. To date, there has not been x-ray films of both hands to confirm arthritis. In April 2003, Dr. B indicated that something was, "(a)ctually done here in 1/01 . . .." But, Dr. B did not identify what was done. Dr. B did note that the Veteran's sarcoidosis was in remission. However, Dr. B did not comment on whether the Veteran's sarcoidosis could be causing or aggravating any arthritis experienced in her hands. On Remand, the Veteran should be afforded an examination to ascertain whether her sarcoidosis may be associated with or aggravating her arthritis. Low Back Disorder. Service medical records show the Veteran suffered low back pain in April and May of 1994. After active-duty service, the Veteran was treated for pack pain from June 2001 to January 2003. In her May 2002 NOD, the Veteran indicates that she has been diagnosed with a lumbar dysfunction. During an April 2003 VA examination, the provider noted that sarcoidosis, which was in remission, could not be etiologically connected to her various pains, to include low back pain. The Board observes that the 2003 VA examination is over 10 years old. In light of the Veteran's assertions that her sarcoidosis is aggravating her low back disability, on Remand, the Veteran should be afforded an examination to ascertain whether her sarcoidosis may be associated with or aggravating her low back disability. Right and Left Ankle Disorders In her May 2002 NOD, the Veteran claimed that, "I have been (told) by doctors in the military regarding my ankles a couple of time that once you have injured a bone, it will never be the same." The Veteran underwent VA examinations of her feet and ankles in June 2001 and April 2003. However, neither examination considered whether the Veteran's service-connected sarcoidosis and/or Sjogren's syndrome affected her ankle disabilities. were not considered for etiology. During her September 2017 hearing testimony, the Veteran testified that she injured her ankle in June 1988. The Veteran testified that, prior to military separation (in 1997), a medical provider at Walter Reed indicated that ankle swelling was related to arthritis. Also during her September 2017 testimony, the Veteran averred that her hands, lower back and ankles may be related to two service-connected disabilities: sarcoidosis and Sjogren's. In fact, she stated that two different rheumatologists have provided "nexus letters" to support such a relationship. The Board has reviewed these letters, and it offers the following synopses: In May, 2013, LTC R suggested a relationship between Sjogren's syndrome and the Veteran's dental issues, which were addressed above. LTC R did not report on the etiology for the remaining conditions on the title page. However, LTC R did provide a medical diagram that suggests arthritis and muscle pain may be attributed to Sjogren's syndrome. In October 2015, MAJ W suggested a correlation between the Veteran's service-connected Sjogren's syndrome and her painful, tender, and swollen joints, to include the spine. Without reviewing the Veteran's claims file, MAJ W provided a written statement that suggests that many and/or all of the Veteran's remaining service connection claims (on the title page) may be awarded on a secondary basis. The Veteran has supplied credible evidence that she endures multiple medical ailments, to include joint pain in numerous appendages and areas. The Veteran has also supplied credible reports of in-service incurrence(s). See September 2017 Hearing Transcript. Before the Board can grant or deny the remaining claims on the title page, the AOJ must endeavor to supply needed medical examination reports. Ultimately, the Board finds that a remand is necessary for VA examination(s) and nexus opinions. See 38 U.S.C.A. § 5103 (d) (stating that a VA examination or opinion warranted when current disability may be associated with service); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (noting low threshold for satisfying these criteria). Accordingly, the case is REMANDED for the following action: 1. If available, copies of updated treatment records, VA and non-VA, should be obtained and added to the claims folder. 2. Thereafter, schedule the Veteran for a VA examination of the cervical and lumbar spine by an appropriate medical professional. All appropriate tests and studies shall be conducted. All relevant electronic records, including a copy of this remand, must be sent to the examiner for review and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner should report ranges of motion on both (a) active motion and (b) passive motion and in both (c) weight-bearing and (d) non-weight bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. For any spinal diagnosis made, the examiner should: (a) identify the diagnosis or diagnoses; (a) opine whether it is at least as likely as not (i.e. 50 percent probability) that the identified cervical and/or lumbar spine disability was incurred during the Veteran's time in active service; (b) opine whether it is at least as likely as not (i.e. 50 percent probability) that a cervical and/or lumbar spine disability has developed secondary to an already service-connected disability, to include sarcoidosis and/or Sjogren's syndrome; and (c) opine whether it is at least as likely as not (i.e. 50 percent probability) that any spinal disability is aggravated by the Veteran's service-connected sarcoidosis and/or Sjogren's syndrome. If the examiner determines that there is aggravation, the examiner should state, to the best of her or his ability, the baseline symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. The examiner must provide all findings, along with a complete rationale for his or her opinions, in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state so and provide a rationale for this conclusion, including an explanation of whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion. 3. The Veteran should then be afforded an appropriate VA examination to determine the current nature and etiology of any bilateral hand disorders. The claims file, to include a copy of this Remand, must be made available to and review by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner is requested to opine as to the following: (a) Clarify any diagnoses related to the Veteran's bilateral hands. (b) Then, with regard to any currently-diagnosed disability related to the Veteran's bilateral hand disorders, based on consideration of all pertinent medical and lay evidence (to include her own assertions concerning in-service incurrence and continuity of symptomatology), the examiner should render an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's bilateral hand disorder had its onset in, or is otherwise attributable to, her active duty military service. (c) Then, if the examiner concludes that Veteran's bilateral hand disorder is not related to her military service, then the examiner should address whether it is at least as likely as not (a 50 percent or higher probability) that the Veteran's bilateral hand disorder is caused or aggravated by her service-connected Sjogren's Syndrome and/or sarcoidosis. If the examiner determines that there is aggravation, the examiner should state, to the best of her or his ability, the baseline symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. The examiner must provide all findings, along with a complete rationale for his or her opinions, in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state so and provide a rationale for this conclusion, including an explanation of whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion. 4. The Veteran should then be afforded an appropriate VA examination to determine the current nature and etiology of any bilateral ankle disorder. The claims file, to include a copy of this Remand, must be made available to and review by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner is requested to opine as to the following: (a) Clarify any diagnoses related to the Veteran's bilateral ankles. (b) Then, with regard to any currently-diagnosed disability related to the Veteran's bilateral ankle disorder, based on consideration of all pertinent medical and lay evidence (to include her own assertions concerning in-service incurrence and continuity of symptomatology), the examiner should render an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's bilateral ankle disorder had its onset in, or is otherwise attributable to, her active duty military service. (c) Then, if the examiner concludes that Veteran's bilateral ankle disorder is not related to her military service, then the examiner should address whether it is at least as likely as not (a 50 percent or higher probability) that the Veteran's bilateral ankle disorder is caused or aggravated by her service-connected Sjogren's Syndrome and/or sarcoidosis. If the examiner determines that there is aggravation, the examiner should state, to the best of her or his ability, the baseline symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. With regard to the questions above, the Board emphasizes that each must be answered. The examiner(s) should take into consideration all of the evidence of record, to include in- and post-service medical records, as well as the Veteran's lay statements concerning in-service incurrence and post-service symptomatology, accepted medical principles, and objective medical findings. All opinions expressed must be accompanied by supporting rationale. 5. After undertaking any necessary additional development, readjudicate the entitlement claims for arthritis of the cervical spine, right hand, and left hand. After completion of the directed development, the AOJ shall also readjudicate the entitlement claims for low back, right ankle, and left ankle disorders. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and her representative must be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs