Citation Nr: 18141637 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 17-22 448A DATE: October 11, 2018 ORDER New and material evidence to reopen claim of service connection for dental disability has been presented; to this extent, the appeal is granted. New and material evidence to reopen claim of service connection for depression has been presented; to this extent, the appeal is granted. New and material evidence to reopen claim of service connection for low back disability has been presented; to this extent, the appeal is granted. Service connection for major depressive disorder with anxious distress features is granted. Service connection for recurrent headaches is granted. Service connection for a dental disorder for compensation purposes is denied. REMANDED Entitlement to service connection for a bilateral lower extremity disorder, to include shin splints, is remanded. Entitlement to service connection for a low back disorder is remanded. FINDINGS OF FACT 1. The competent and credible evidence of record reflects it is at least as likely as not the Veteran developed major depressive disorder with anxious distress features as a result of active service. 2. The competent and credible evidence of record reflects it is at least as likely as not the Veteran developed recurrent headaches as a result of active service and/or as secondary to her major depressive disorder. 3. The record does not reflect the Veteran has a current dental disorder for which compensation may be paid. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for major depressive disorder with anxious distress features have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a grant of service connection for recurrent headaches have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for a grant of service connection for a dental disorder for compensation purposes have not been met. 38 U.S.C. §§ 1712, 5107; 38 C.F.R. §§ 3.381, 4.150, 17.161. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from August 1995 to January 1998 for which she received an honorable discharge, and from April 1999 to August 1999 for which she was discharged under honorable conditions. This matter is before the Board of Veterans’ Appeals (Board) on appeal from rating decisions promulgated in August 2013 and May 2015 by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran’s depression, dental, and low back claims were the subject of prior denials in May 2000 and June 2001, and the Veteran did not appeal. Nevertheless, the Board finds that new and material evidence has been received to reopen these claims in accord with 38 C.F.R. § 3.156(a). Therefore, the Board will address the merits of the underlying service connection claims in the adjudication that follows. The Board also notes that a claim for service connection for a dental condition is also considered a claim for VA outpatient dental treatment. Mays v. Brown, 5 Vet. App. 302, 306 (1993). However, in dental claims, the RO adjudicates the claim of service connection and the VA Medical Center (VAMC) adjudicates the claim for outpatient treatment. As this matter stems from an adverse RO determination, the appeal is limited to the issue of entitlement to service connection for a dental trauma for compensation purposes. In any event, the record reflects the RO referred the issue of service connection for dental treatment purposes to the appropriate VAMC. The Board further notes the Veteran has submitted evidence, including competent medical evidence regarding the depression and headaches claims, that was not considered when this appeal was last adjudicated below. She has waived initial consideration of this evidence by the agency of original jurisdiction (AOJ) in accord with 38 C.F.R. § 20.1304(c). Service Connection 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. § 1154(a); 38 C.F.R. § 3.303(a). 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. § 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. § 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 record reflects the Veteran has a competent medical background. Her military occupational specialty (MOS) was that of Medical Service Apprentice and Medical Service Journeyman. This background must be taken into account when evaluating her own opinion regarding the diagnosis and etiology of her claimed disabilities. See Goss v. Brown, 9 Vet. App. 109, 114-15 (1996); YT v. Brown, 9 Vet. App. 195, 201 (1996); and Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (All of which generally stand for the proposition that any health care professional is qualified to render a medical opinion.). However, the Board may also take the Veteran's self-interest into account in assessing the weight to be accorded to his or her self-assessment. See Pond v. West, 12 Vet, App. 341, 345 (1999) (Although the Board must take a physician-veteran's opinions into consideration, it may consider whether self-interest may be a factor in making such statements, even if the veteran himself is a health care professional); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (The Board may consider self interest in evaluating the testimony of claimants). 1. Service connection for major depressive disorder with anxious distress features The Veteran essentially contends that she developed recurrent symptoms of depression while on active duty, and provided details thereof. She has also submitted supporting lay statements from multiple individuals who attest to her having exhibited such symptoms beginning with her active service. In addition, her service treatment records reflect she did seek mental health evaluation in September 1995, to include for complaints of anxiety and depressed mood. The Board also notes that a November 2009 VA arranged examination includes findings of depression. Granted, this is not considered a psychosis as defined by 38 C.F.R. § 3.384. As such, service connection is not warranted on a presumptive basis for a chronic disease manifested to a compensable degree within the first post-service year under 38 C.F.R. §§ 3.307, 3.309(a). Nevertheless, this further supports her contention that such symptoms originated during her active service. The Board further notes that the Veteran has submitted a private medical opinion dated in May 2018 which diagnosed her current acquired psychiatric disorder as major depressive disorder with anxious distress features, and related the etiology of that disability to her active service. The Board finds no reason to doubt the qualifications of this private clinician to provide competent medical evidence, and the opinion reflects the clinician was familiar with the Veteran’s medical history. Moreover, the opinion was not expressed in speculative or equivocal language, and was supported by stated rationale. No competent medical evidence is of record that explicitly refutes this opinion. In view of the foregoing, and resolving all reasonable doubt in favor of the Veteran, the Board finds the competent and credible evidence of record reflects it is at least as likely as not she developed her current major depressive disorder with anxious distress features as a result of active service. Therefore, service connection is warranted. The Board notes that in making this determination it was cognizant of the fact the Veteran’s psychiatric problems have also been attributed to conditions other than major depressive disorder. The law does not preclude establishing service connection for a separately diagnosed acquired psychiatric disorder. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Nevertheless, a review of the pertinent May 2018 private medical opinion reflects all of the Veteran’s current symptomatology was attributed to the diagnosis of major depressive disorder with anxious distress features. Thus, the Board finds a grant of service connection for major depressive disorder with anxious distress features represents a full allowance of the benefits sought on appeal with respect to this claim. 2. Service connection for recurrent headaches As with her depression claim, the Veteran has indicated that she developed recurrent headaches while on active duty and has submitted supporting lay evidence. She is competent to describe such symptomatology, and her account of such appears credible. Further, her service treatment records include complaints of headaches, to include associated with allergic rhinitis in September 1997. The Board acknowledges that an April 2015 VA examination includes an opinion against the Veteran’s current headaches being etiologically linked to service. However, it does not appear this opinion adequately took into consideration the Veteran’s competent and credible account of recurrent headaches which originated during service. The Board further observes that an April 2018 private medical opinion found that the Veteran’s headaches were precipitated by and aggravated by her major depressive disorder. Even though that private clinician also found the recurrent headaches were not incurred during service, as the Board has found her depressive disorder was the result of active service it does tend to support her contention that recurrent headaches originated at the same time thereof. Regardless, as service connection is warranted for the major depressive disorder, the April 2018 private medical opinion supports a grant of secondary service connection pursuant to 38 C.F.R. § 3.310. In view of the foregoing, and resolving all reasonable doubt in favor of the Veteran, the Board finds competent and credible evidence of record reflects it is at least as likely as not she developed recurrent headaches as a result of active service and/or as secondary to her major depressive disorder. Consequently, service connection is warranted. 3. Service connection for a dental disorder for compensation purposes 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). The Board acknowledges the service treatment records do document in-service dental treatment. However, 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 Board notes 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 Federal Circuit defined "service trauma" as "an injury or wound produced by an external force during the service member's performance of military duties." Nielson v. Shinseki, 607 F.3d 802, 808 (Fed. Cir. 2010). The definition excluded "the intended result of proper medical treatment." Id. Here, no such trauma appears to be indicated by the service treatment records, nor does it appear the Veteran explicitly identified such in her contentions. The Board further notes that even if the Veteran did have in-service dental trauma, only certain disabilities are subject to compensation under VA regulations. 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. Here, the Veteran has indicated recurrent dental problems since active service. Moreover, the post-service medical records include treatment for dental caries, dental pain, and abscess tooth. However, there is no evidence which documents she currently has a dental disability for which compensation may be paid under 38 C.F.R. § 4.150. In view of the foregoing, the Board concludes the preponderance of the evidence is against the Veteran's claim of entitlement to a dental disorder for compensation purposes, and it must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral lower extremity disorder, to include shin splints, is remanded. 2. Entitlement to service connection for a low back disorder is remanded. The Veteran has reported recurrent lower extremity and low back problems that originated while on active duty. Although the Veteran’s service treatment records do not appear to contain findings of low back problems, an October 1999 VA examination noted she reported recurrent back problems since 1996 and diagnosed chronic thoraco-lumbar sprain. Her service treatment reflect treatment for lower extremity problems to include bilateral ankle and shin splints in January 1996. The October 1999 VA examination also diagnosed chronic bilateral ankle sprain. Subsequent post-service medical records continue to indicate complaints of low back and lower extremity pain. Despite the foregoing, the Board notes that the nature of the claimed disabilities is not clear from the evidence of record. For example, it is not clear whether she has a current back disorder other than sprain/pain, or whether she currently has shin splints. The Board also notes that service connection has been established for bilateral pes planus. Consequently, the Board finds that a remand is required to accord the Veteran competent medical examination(s) and opinions to address the nature and etiology of her claimed bilateral lower extremity disorder and low back disorder. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records for the Veteran which cover the period from February 2017 to the present. 2. Request the Veteran identify all medical care providers who have provided treatment for her claimed low back and lower extremity disorders for the period from February 2017 to the present. After obtaining any necessary release, request those records not on file. 3. Notify the Veteran that she may submit lay statements from herself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of her in-service and post-service low back and lower extremity symptomatology. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. Schedule the Veteran for competent medical examination(s) by an appropriately qualified clinician(s) to address the nature and etiology of her claimed low back and bilateral lower extremity disabilities. For any such chronic disability found to be present, the respective examiner should express an opinion as to whether it is at least as likely as not it was incurred in or otherwise the result of her active service. These opinions should reflect consideration of the documented in-service findings of bilateral ankle pain and shin splints, as well as the Veteran’s competent and credible account of recurrent low back and lower extremity problems since service. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD John Kitlas, Counsel