Citation Nr: 18140073 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 10-34 044 DATE: October 2, 2018 ORDER Subject to the laws and regulations governing monetary payments, a separate 10 percent rating for right lumbar sensory radiculopathy is granted. Subject to the laws and regulations governing monetary payments, a separate 10 percent rating for left lumbar sensory radiculopathy is granted. Service connection for GERD is granted. Service connection for right shoulder disability is denied. Service connection for a dental disorder for compensation purposes, to include loss of teeth, is denied. FINDINGS OF FACT 1. The evidence shows the Veteran has had right lower extremity radiculopathy due to his service-connected back disability. 2. The evidence shows the Veteran has had left lower extremity radiculopathy due to his service-connected back disability. 3. The Veteran’s GERD had onset during active duty. 4. The Veteran’s right shoulder disorder did not have its onset during service and is not otherwise related to his active service. 5. The Veteran did not sustain dental trauma in service, and he does not have a current dental disability for which compensation can be paid. CONCLUSIONS OF LAW 1. The criteria for a separate disability rating of 10 percent for right lumbar sensory radiculopathy have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.400, 4.1, 4.2, 4.6, 4.7, 4.124a, Diagnostic Code 8520 (2017). 2. The criteria for a separate disability rating of 10 percent for right lumbar sensory radiculopathy have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.400, 4.1, 4.2, 4.6, 4.7, 4.124a, Diagnostic Code 8520 (2017). 3. The criteria for service connection for a dental disability for VA compensation purposes have not been met. 38 U.S.C. §§ 1110, 1712 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.381, 4.150, 17.161 (2017). 4. The criteria for service connection for GERD have been met. 38 U.S.C. §§ 1110, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 5. The criteria for service connection for a right shoulder disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1154(a), (b), 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service in the US Marine Corps from December 1976 to February 1979. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 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). Direct service connection may be granted with evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) (table decision). Alternatively, service connection may be established under 38 C.F.R. § 3.303 (b) by evidence of (i) the existence of a chronic disease in service during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or evidence of continuity of symptomatology. If the disability claimed is not considered to be a chronic disease under 38 C.F.R. § 3.307, credible lay evidence of continuous symptoms may establish service connection. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his or her current symptomatology. 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 1376-77. 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 Federal Circuit, citing its decision in Madden, recognized that the Board had an inherent fact-finding ability. Id. at 1076; see also 38 C.F.R. § 7104 (a) (2016). Moreover, the 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). 1. Bilateral leg disorder The Veteran asserts entitlement to service connection for a bilateral leg disorder, that he describes as pain that radiates from his back to his legs. The Veteran states that this condition began about 10 years ago and is not limited to the joints. The Veteran was also afforded a VA examination in August 2017 to determine if had a diagnosis of a foot, knee or hip disability that was causing his leg pain. The Veteran told the examiner that he does not have pain in his feet, he just experiences aching in his feet related to his back and leg pain, but that he cannot walk and has trouble standing due to the pain. He further noted that had pain that diffused down his both legs into his feet from his back. After a complete examination it was determined that the Veteran did not have a diagnosis of a foot, knee or back disability. After examining the Veteran’s knees, hips, and feet, the VA physician opined that the Veteran’s complaints of constant, severe, back and bilateral leg pain were not related to any specific foot, knee, or hip problems. The examiner opined that there was no objective evidence to support a diagnosis for any foot, knee, or hip disability. Based on the Veteran’s complaints of pain that radiates from his back into his legs and down to his feet, and based on the lack of a formal diagnosis of a hip, knee, or foot disability, the Board is finds that he has bilateral lower extremity impairment. The United States Court of Appeals for the Federal Circuit has recently held that pain alone may constitute a disability, even without an identifiable underlying pathology. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). However, “to establish a disability, the Veteran’s pain must amount to a functional impairment.” Id. at 1367. “Functional impairment,” the Federal Circuit noted, is defined as the inability of the body or a constituent part of it “‘to function under the ordinary conditions of daily life including employment.’“ Id. at 1363 (quoting 38 C.F.R. § 4.10). In other words, pain alone can qualify as a disability where it diminishes the body’s ability to function, even where it is not diagnosed as connected to a current underlying condition. Id. Here, because the Board finds the Veteran’s report that he is suffering from radiating nerve pain associated with his service-connected back disability, and the evidence of record clearly reflects that the Veteran has experienced right and left lower extremity radiculopathy due to his service-connected back disability during the appeal period, service connection is warranted 2. GERD The Veteran has asserted entitlement to service connection for GERD. Specifically, the Veteran states that his stomach problems began after he was involved in a motor vehicle accident during his active service in 1978. When his wife was driving him home from the hospital after the accident, he suddenly vomited. Since that time, he has had similar reactions and has been prescribed medication for his symptoms. As a part of his claim for service connection he was afforded a VA examination in September 2017. At the end of this examination, the VA physician opined that it was less likely than not that the Veteran’s GERD was related to his active military service. The examiner did note that the Veteran stated on his separation physical that he had had abdominal cramps, but there was no further elaboration. Post service, the first documentation of any GI symptoms or treatment was for an upper GI abdominal cramping in 1988. The examiner also noted that the Veteran carried diagnoses of hiatal hernia and gastritis, but that these disabilities developed post-service. The Board notes that the Veteran had several complaints in service for stomach and gastric complaints in service. On his February 1979 Report of Medical History, he noted that his health had changed in service. On this report he noted having frequent indigestion, stomach, liver, or intestinal trouble, and recent loss or gain of weight. He also placed a hand-written note that he had stomach pains often. Although service treatment records (STRs) do not reflect treatment for GERD, they do show complaints of stomach pains in service. Further, the Veteran has provided competent and credible testimony that onset of GERD occurred during active duty. As a result of the foregoing and resolving any doubt in the Veteran’s favor, service connection for GERD is warranted. 3. Shoulder Disability In April 2008, the RO denied service connection for a right wrist disability. The Veteran filed a claim for a shoulder disability in October 2008. The RO treated this as a claim to reopen for a right wrist disability. However, the Board disagrees with the RO and views this as a new claim for service connection for a shoulder disability, due to residuals of a broken arm. The Veteran has asserted entitlement to service connection for a right shoulder disability. Specifically, he claims that he broke his arm in service twice, and continues to have pain in his right arm as a result of the incident. A review of the Veteran’s service treatment records does not reveal treatment for a shoulder disability, or treatment for broken arm or a shoulder disability in service. Post-service treatment records show that the Veteran did not begin of complaining of right shoulder pain until 2015, which is more than 30 years post-service discharge. As to service incurrence under 38 C.F.R. § 3.303 (a), the Board finds that the Veteran is competent to report on what he sees and feels like and experiences in regard to his shoulder disability such as pain and loss of motion because these symptoms come to him via his own senses. See Davidson. However, the service treatment records are negative for a shoulder injury as well as symptoms or a diagnosis of a shoulder disability. See Colvin. Moreover, the Board finds the more probative the service treatment records that do not document an injury, a history of an injury, or diagnose a shoulder. Accordingly, the Board finds that the most probative evidence of record shows that a right shoulder disability was not incurred in while on active duty and service connection must be denied based on in-service incurrence. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). As to the presumptions found at 38 C.F.R. § 3.309 (a), the record does not show the Veteran being diagnosed with arthritis in his right shoulder in the first post-service year because there is no evidence of treatment or a diagnosis are not diagnosed until three decades after service. Accordingly, the Board finds that entitlement to service connection for right and left shoulder disabilities must be denied on a presumptive basis. See 38 U.S.C. §§ 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. As to post-service continuity of symptomatology under 38 C.F.R. § 3.303(b), the Board finds that the length of time between the Veteran’s separation from active duty in 1979 and the first complaints of right shoulder disability in 2015 to be evidence against finding continuity. See, e.g., VA treatment records dated in February 2015, prior to this date the Veteran only complained of left shoulder pain. The Board acknowledges, as it did above, that the Veteran is competent to give evidence about what he sees and feels; for example, the claimant is competent to report that he had problems with observable symptoms of right shoulder disability, such as pain, since service. See Davidson. The post-service records are uniformly negative for a shoulder injury and/or a shoulder disability until 2015. Therefore, the Board finds that service connection for right shoulder disability based on post-service continuity of symptomatology must be denied. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(b). In reaching the above conclusions the Board also considered the doctrine of reasonable doubt. 38 U.S.C. § 5107 (b). However, as the preponderance of the evidence of record is against the claims, the Board finds that doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert. 4. Dental Disability The Veteran previously submitted a claim of entitlement to service connection for a dental disability which was denied in a November 2001 rating decision on the basis that the Veteran there was no evidence of record showing that the Veteran had broken teeth that were to have been incurred in or aggravated by the Veteran’s military service. The Veteran did not file a notice of disagreement or submit new evidence within a year of that decision and the claim became final. In September 2007, the Veteran filed a claim to reopen his claim for a dental disability. In April 2008, the RO noted that the claim had been previously denied in November 2001, and there was no basis to re-open the claim. In connection with the Veteran’s claim to reopen, he provided statements in support of his claim that his dental disability began in service and he received poor treatment. These statements are new and were not part of the previous denial. Thus, the Board finds that new and material evidence has been received sufficient to reopen his previously denied claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection may be awarded for missing teeth due to dental trauma or bone loss in service. The law and regulations also provide that treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are considered non-disabling conditions and may be considered service-connected solely for the purpose of determining entitlement to VA dental examination or outpatient dental treatment. See 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 17.161; see also Woodson v. Brown, 8 Vet. App. 352, 354 (1995). Dental disabilities which may be awarded compensable disability ratings are set forth under 38 C.F.R. § 4.150. These disabilities include chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss of the mandible, nonunion or malunion of the mandible, limited temporomandibular motion, loss of the ramus, loss of the condyloid or coronoid processes, loss of the hard palate, loss of teeth due to the loss of substance of the body of the maxilla or mandible and where the lost masticatory surface cannot be restored by suitable prosthesis, when the bone loss is a result of trauma or disease but not the result of periodontal disease. 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. To establish entitlement to service connection for loss of a tooth, the Veteran must have sustained a combat wound or other in-service trauma. 38 U.S.C. § 1712; 38 C.F.R. § 3.381 (b). The significance of finding that a dental condition is due to in- service trauma is that a veteran will be eligible for VA outpatient dental treatment, without being subject to the usual restrictions of a timely application and one-time treatment. 38 C.F.R. § 17.161 (c). The Veteran has stated that his dental disability began in boot camp. Specifically, that he began having dental treatment in service and later he was told that all the work was done improperly and that all his teeth would have to be removed. In September 2007, the Veteran filed a claim to reopen his claim for a dental disability. As evidence to support his claim, the Veteran submitted dental treatment notes from the VA medical center than showed that he had poor dentition, however, these treatment records do not relate your poor dentition to his active military service. Service treatment records show that the Veteran had several missing teeth at service discharge, as well as several cavities, but there is no evidence of record that the Veteran had treatment in service, and there is no evidence that the Veteran was treated for or complained of facial trauma after his motor vehicle accident. There is no evidence that the Veteran received or sought treatment for many decades after service discharge. 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 Nielson v. Shinseki, 607 F.3d 802 (Fed. Cir. 2010) (holding that service trauma is defined as an injury or wound produced by an external physical force during a service member’s performance of military duties and does not include intended results of proper medical treatment provided by the military); 38 C.F.R. § 3.306 (b)(1); VAOGCPREC 5-97. Here, the Veteran’s service treatment records do not show that received dental treatment during service and there is no evidence that he sustained dental trauma in service. Further, there is no evidence that suggests the Veteran currently has a dental disability for which compensation can be paid. The Veteran has reported having missing teeth that he claims were made worse by procedures during service. The Board notes compensation is not payable for treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, or periodontal disease. Thus, the Veteran’s service connection claim for a dental disability for compensation purposes must be denied. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Anderson