Citation Nr: 18146103 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-35 282A DATE: October 30, 2018 ORDER New and material evidence having been received, reopening of the claim of entitlement to service connection for hypertension is granted. Entitlement to service connection for a tooth fracture is denied. REMANDED Entitlement to service connection for gout of the right foot, right ankle and right toes is remanded. Entitlement to service connection for sebaceous cyst middle of back is remanded. Entitlement to service connection for a right thumb disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for left foot metarsalgia with Morton’s neuroma and paresthesia is remanded. Entitlement to service connection for right foot metarsalgia with Morton’s neuroma is remanded. Entitlement to service connection for right foot plantar fasciitis is remanded. Entitlement to service connection for cardiomegaly to include chest pain is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for anemia is remanded. Entitlement to service connection for splenomegaly is remanded. Entitlement to service connection for onychomycosis is remanded. Entitlement to service connection for an acquired psychiatric disability, to include depression, is remanded. FINDINGS OF FACT 1. In an unappealed September 1984 rating decision, the Veteran was denied entitlement to service connection for hypertension. 2. The evidence associated with the record subsequent to the September 1984 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claims and raises a reasonable possibility of substantiating the claim of entitlement to service connection for hypertension. 3. The Veteran does not have a dental disability for which service connection for compensation purposes may be granted, and there is no other dental disability that has been shown to be related to any tooth fracture during service CONCLUSIONS OF LAW 1. New and material evidence has been received sufficient to reopen a claim of entitlement to service connection for hypertension. 38 U.S.C. §§ 5108, 7104, 7105 (2012); 38 C.F.R. § 3.156 (2018). 2. The criteria for service connection for a dental disability claimed as a tooth fracture for compensation purposes have not been met. 38 U.S.C. §§ 1110, 1131, 1712 (2012); 38 C.F.R. §§ 3.303, 3.381, 4.150 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active naval service from March 1978 to September 1983; and, active military service from July 2005 to July 2008 and from October 2010 to January 2012, to include service in Southwest Asia. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In the context of dental claims, the United States Court of Appeals for Veterans Claims (Court) has specifically held that a claim for service connection for a dental disorder is also a claim for VA outpatient dental treatment under 38 C.F.R. § 3.381 (2017). Mays v. Brown, 5 Vet. App. 302 (1993). Thus, adjudication of the Veteran’s claim for service connection must also include consideration of service connection for the purpose of establishing eligibility for outpatient dental treatment as set forth in 38 C.F.R. § 17.161 (2017). See also Douglas v. Derwinski, 2 Vet. App. 435, 440 (1992) (en banc); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The issue of entitlement to outpatient dental treatment, has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b) (2018). 1. Claim to Reopen – Hypertension In a September 1984 rating decision, the Veteran was denied entitlement to service connection for hypertension based on a finding that there was no evidence of hypertension during his active service. The Veteran did not appeal that decision. The pertinent evidence received since the September 1984 rating decision includes medical evidence indicating that the Veteran has a diagnosis of hypertension. That evidence is new and material. In this regard, it has not been previously considered by VA and it raises a reasonable possibility of substantiating the claim of entitlement to service connection for hypertension. Accordingly, reopening of the claims of entitlement to service connection hypertension is warranted. 2. Service Connection – Tooth Fracture The Veteran asserts that he has a tooth fracture disability related to service. Under current VA regulations, compensation is only available for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916 (2018). The conditions for which service-connected compensation benefits are available are as follows: 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; loss of the maxilla; and nonunion or malunion of the maxilla. See 38 C.F.R. § 4.150. Thus, for loss of the teeth, bone loss through trauma or disease, such as osteomyelitis, must be shown for compensable purposes. See id. The loss of the alveolar process as a result of periodontal disease, however, is not considered disabling. See id.; see also 38 U.S.C. § 1712 (2012); 38 C.F.R. §§ 3.381, 17.161 (2018). In addition, to be compensable, the lost masticatory surface for any tooth cannot be restorable by suitable prosthesis. See 38 C.F.R. § 4.150. For other types of service-connected dental disorders, the claimant may receive treatment only and not compensation. See 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150, 17.161. In particular, under 38 C.F.R. § 3.381, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are to be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment as provided in 38 C.F.R. § 17.161. As noted in the introduction above, the matter of eligibility for VA dental treatment was referred to the AOJ and is thus not currently before the Board. Rather, the Board will address only whether the Veteran is entitled to service connection for VA compensation purposes. On review, the Board finds that service connection for a dental disorder is not warranted. The service treatment records fail to show any trauma, damage or disability of the teeth or gums, incurred during active military service, which could be subject to service connection for compensation purposes. Further, there is no medical or lay evidence of record, either prior to or during the pendency of the current claim, indicating that the Veteran has been diagnosed or treated for any of the conditions listed above for which service-connected compensation is warranted, including missing teeth due to the loss of substance of the body of the maxilla or mandible, and/or of the soft tissue surrounding that region. In this regard, there is no medical evidence either during active service or since indicating the Veteran has been diagnosed or treated for any dental condition. There is thus no evidence, medical or otherwise, that the Veteran has any current dental disorder for which compensation is payable. See 38 C.F.R. § 4.150. Without a current qualifying dental disability present, the Board need not inquire further as to the etiology of the claimed dental disability. See Degmetich v. Brown, 104 F. 3d 1328 (1997). In sum, the Veteran seeks service connection for a dental disability that cannot be considered for compensation purposes, instead the disability can only be considered service-connected for the purpose of establishing eligibility for outpatient dental treatment. Thus, the claim for service connection for compensation purposes, must be denied. Similarly, as there is no showing that any other current dental disability is related to damage or trauma to the jaw that occurred during service, a claim for any other dental disability must also be denied. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a dental disability for compensation purposes is not warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Service Connection – Gout, Left Foot Metarsalgia, Right Foot Metarsalgia, Cardiomegaly, and Onychomycosis. A review of the record shows that a VA medical opinion was obtained for gout, left foot metarsalgia with Morton’s neuroma and paresthesia, right foot metarsalgia with Morton’s neuroma, cardiomegaly, and onychomycosis in October 2012. A review of those medical opinions show that they are inadequate for adjudication purposes. In this regard, the VA medical opinions determined the Veteran did not have current diagnoses of gout, left foot metarsalgia with Morton’s neuroma and paresthesia, right foot metarsalgia with Morton’s neuroma, cardiomegaly, or onychomycosis. However, the medical evidence of record indicates the Veteran does indeed have diagnoses of those disabilities. Thus, the Board finds that the Veteran should be afforded new VA examinations to determine the nature and etiology of any currently present gout, left foot metarsalgia with Morton’s neuroma and paresthesia, right foot metarsalgia with Morton’s neuroma, cardiomegaly, and onychomycosis. 2. Service Connection – Left Shoulder A review of the record shows the Veteran was afforded a VA examination for his claimed left shoulder disability in October 2012. At that time, the examiner noted a diagnosis of left shoulder osteoarthritis. The examiner then opined that the Veteran did not have a shoulder or arm condition. In this regard, the examiner stated the Veteran’s “claimed condition of left shoulder condition to include arthritis, the diagnosis is already noted in the diagnosis section.” No opinion as to the nature and etiology of the Veteran’s left shoulder disability was provided. A review of that medical opinion shows that it is inadequate for adjudication purposes. In this regard, the VA medical opinion was internally inconsistent. Specifically, the examiner diagnosed left shoulder osteoarthritis, then inconsistently stated that the Veteran did not have a left shoulder disability. A review of the record shows the Veteran was afforded another VA examination for his claimed left shoulder disability in April 2016. At that time, the examiner opined that the Veteran’s left shoulder disability clearly and unmistakably existed prior to service and was not aggravated beyond tis natural progression by an in-service event, injury or illness. In this regard, the examiner stated that the injury was considered to be self-limiting and that the progression of the Veteran’s AC joint condition was a natural progression of his pre-existing condition. A review of that medical opinion shows that it is inadequate for adjudication purposes. In this regard, the VA examiner failed to adequately provide supporting rationale for the opinion that the Veteran’s claimed left shoulder disability was not permanently aggravated by his active service. Moreover, the VA medical opinion fails to provide an opinion as to direct service connection for the Veteran’s left shoulder disability. Thus, the Board finds that the Veteran should be afforded another VA examination to determine the nature and etiology of any currently present left shoulder disability. 3. Service Connection – Anemia, Splenomegaly, Hypertension, Right Foot Plantar Fasciitis, Right Thumb Disability, Left Knee Disability, Acquired Psychiatric Disability, and Sebaceous Cyst of the Back A review of the record shows that a VA medical opinion was obtained for his claimed anemia, splenomegaly, hypertension, right foot plantar fasciitis, right thumb disability, left knee disability, acquired psychiatric disability, and sebaceous cyst of the back in October 2012. A review of those medical opinions show that they are inadequate for adjudication purposes. In this regard, the VA medical opinions failed to provide an opinion as to the nature and etiology of the Veteran’s claimed disabilities. Thus, the Board finds that the Veteran should be afforded new VA examinations to determine the nature and etiology of any currently present anemia, splenomegaly, hypertension, right foot plantar fasciitis, right thumb disability, left knee disability, acquired psychiatric disability, and sebaceous cyst of the back. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the nature and etiology of the Veteran’s gout of the right foot, right ankle, and right toes. The examiner should review the claims file and indicate that review in the report. Any indicated studies should be performed. Based upon the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any gout had its onset during the Veteran’s active service, or is otherwise etiologically related to such service. The rationale for all opinions expressed must be provided. 3. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the nature and etiology of the Veteran’s right and left foot metarsalgia with Morton’s neuroma. The examiner should review the claims file and indicate that review in the report. Any indicated studies should be performed. Based upon the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any right and/or left foot metarsalgia with Morton’s neuroma had its onset during the Veteran’s active service, or is otherwise etiologically related to such service. The rationale for all opinions expressed must be provided. 4. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the nature and etiology of the cardiomegaly with chest pain. The examiner should review the claims file and indicate that review in the report. Any indicated studies should be performed. Based upon the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any cardiomegaly with chest pain had its onset during the Veteran’s active service, or is otherwise etiologically related to such service. The rationale for all opinions expressed must be provided. 5. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the nature and etiology of the Veteran’s onychomycosis. The examiner should review the claims file and indicate that review in the report. Any indicated studies should be performed. Based upon the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any onychomycosis had its onset during the Veteran’s active service, or is otherwise etiologically related to such service. The rationale for all opinions expressed must be provided. 6. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of any currently present left shoulder disability. The claims file must be made available to, and reviewed by the examiner. Any indicated studies must be obtained. Based on a review of the record and an evaluation of the Veteran, the examiner should first identify all left shoulder disabilities present during the pendency of the claim, and proximate thereto. Once all left shoulder disabilities have been identified, the examiner should provide the following findings: Does the Veteran have a left shoulder disability that clearly and unmistakably existed prior to his active service? For any disability found to clearly and unmistakably exist prior to the Veteran’s active service, was that disability clearly and unmistakably NOT aggravated by service? In forming the opinion, the examiner must note that the Veteran’s lay statements alone are not a sufficient basis with which to support a finding that a disability clearly and unmistakably existed prior to service. With regard to any left shoulder disability determined to NOT clearly and unmistakably exist prior to the Veteran’s active service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that such disability had its onset during the Veteran’s active service, or is otherwise etiologically related to such service. The rationale for all opinions expressed must be provided. 7. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the nature and etiology of the Veteran’s anemia. The examiner should review the claims file and indicate that review in the report. Any indicated studies should be performed. Based upon the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any anemia had its onset during the Veteran’s active service, or is otherwise etiologically related to such service. The rationale for all opinions expressed must be provided. 8. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the nature and etiology of the Veteran’s splenomegaly. The examiner should review the claims file and indicate that review in the report. Any indicated studies should be performed. Based upon the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any splenomegaly had its onset during the Veteran’s active service, or is otherwise etiologically related to such service. The rationale for all opinions expressed must be provided. 9. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the nature and etiology of the Veteran’s hypertension. The examiner should review the claims file and indicate that review in the report. Any indicated studies should be performed. Based upon the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any hypertension had its onset during the Veteran’s active service, or is otherwise etiologically related to such service. The rationale for all opinions expressed must be provided. 10. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the nature and etiology of the Veteran’s right foot plantar fasciitis. The examiner should review the claims file and indicate that review in the report. Any indicated studies should be performed. Based upon the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any right foot plantar fasciitis had its onset during the Veteran’s active service, or is otherwise etiologically related to such service. The rationale for all opinions expressed must be provided. 11. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the nature and etiology of the Veteran’s right-hand disability. The examiner should review the claims file and indicate that review in the report. Any indicated studies should be performed. Based upon the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any right-hand disability had its onset during the Veteran’s active service, or is otherwise etiologically related to such service. The rationale for all opinions expressed must be provided. 12. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the nature and etiology of the Veteran’s left knee disability. The examiner should review the claims file and indicate that review in the report. Any indicated studies should be performed. Based upon the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any left knee disability had its onset during the Veteran’s active service, or is otherwise etiologically related to such service. The rationale for all opinions expressed must be provided. 13. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of any currently present acquired psychiatric disability, to include depression. The claims file must be made available to, and reviewed by the examiner. Any indicated studies must be obtained. Based on a review of the record and an evaluation of the Veteran, the examiner should first identify all psychiatric disabilities present during the pendency of the claim, and proximate thereto. Once all psychiatric disabilities have been identified, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any acquired psychiatric disability had its onset during the Veteran’s active service, or is otherwise etiologically related to such service. The rationale for all opinions expressed must be provided. 14. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the nature and etiology of the Veteran’s sebaceous cyst of the back. The examiner should review the claims file and indicate that review in the report. Any indicated studies should be performed. Based upon the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any sebaceous cyst of the back had its onset during the Veteran’s active service, or is otherwise etiologically related to such service. The rationale for all opinions expressed must be provided. 15. Confirm that the VA examination reports and all medical opinions provided comport with this remand, and undertake any other development found to be warranted. 16. Then, readjudicate the remaining issues on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mariah N. Sim, Associate Counsel