Citation Nr: 18147324 Decision Date: 11/06/18 Archive Date: 11/02/18 DOCKET NO. 13-11 982 DATE: November 6, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for a right knee disability is reopened and, to that extent, the appeal is granted. New and material evidence having been received, the claim of entitlement to service connection for a left knee disability is reopened and, to that extent, the appeal is granted. Service connection for a dental disability for Department of Veterans Affairs (VA) compensation purposes is denied. REMANDED Service connection for a right knee disability is remanded. Service connection for a left knee disability is remanded. Service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD) and fibrosis, is remanded. FINDINGS OF FACT 1. In a January 1974 rating decision, the VA Regional Office (RO) denied service connection for a bilateral knee injury; the Veteran did not appeal the decision and new and material evidence was not received within the one year appeal period. 2. Evidence associated with the record since the January 1974 decision relates to unestablished facts and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a bilateral knee disability. 3. The Veteran’s dental disorder, described as decayed and missing teeth, is not considered a disability for VA compensation purposes. CONCLUSIONS OF LAW 1. New and material evidence has been received and the claim seeking service connection for a right knee disability is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 2. New and material evidence has been received and the claim seeking service connection for a left knee disability is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for a dental disorder for compensation purposes have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.381, 4.150. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1972 to October 1973. In March 2018, the Veteran testified at a Board of Veterans’ Appeals (Board) hearing before the undersigned. A transcript of the hearing is associated with the record. The Board notes that a claim for a dental disability for compensation purposes includes a claim for VA outpatient treatment. See Mays v. Brown, 5 Vet. App. 302 (1993). As review of the record indicates the Veteran is in receipt of VA outpatient dental treatment under Class II(b), no further action will be undertaken at this time. See 38 C.F.R. §§ 3.381(a), 17.161(c). The Veteran has not raised any issues with the duty to notify or duty to assist. New and Material Evidence With regard to the claim for service connection for a bilateral knee disability, described as right knee injury with instability and loose bodies and a left knee injury with instability, the Board notes that the RO denied the Veteran’s claims of service connection in a January 1974 rating decision due to a pre-existing bilateral knee injury and no evidence of additional knee injury in service. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.104, 19.118, 19.153 (1973); currently 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2018). As the service connection claim has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; see 38 C.F.R. § 3.156(a). New and material evidence means existing evidence not previously submitted to agency decision-makers that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim and can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim and must raise a reasonable possibility of substantiating the claim. Id. The evidence received since the January 1974 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. For example, a November 2009 VA examination was obtained that found bilateral knee arthritis and concluded that the knee condition was a continuation of a pre-existing bilateral knee disability. Further, the Veteran stated that he was treated with an immobilization cast on his left knee for the majority of boot camp and testified that his bilateral knee symptomatology worsened in active service due to his duties on the flight deck and continued after discharge. This new evidence addresses the reason for the previous denial – whether a pre-existing knee disability was aggravated by active service – and raises a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (the threshold for reopening is low); see also Justus v. Principi, 3 Vet. App. 510, 513 (1992) (the credibility of this evidence is presumed for purposes of reopening the claim). Accordingly, the claim is reopened and will be considered on the merits. Service Connection The Veteran asserts that service connection is warranted for poor in-service dental care that resulted in nonrestorable carious teeth and tooth extractions. He testified that his teeth decayed and fell out or were extracted because the corpsman that provided care was not a dentist. Nonetheless, he does not have a dental disability that may be service connected for compensation purposes. Under the laws and regulations, compensation is only allowable for certain types of dental and oral conditions. See 38 C.F.R. § 4.150. Notably, to be considered a disability for VA purposes, tooth loss must be due to loss of substance of the body of the maxilla or mandible – essentially, the tooth loss must be due to bone loss of the jaw. See id., Diagnostic Code 9913. Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not disabilities for VA compensation purposes. 38 C.F.R. § 3.381. In that regard, the Veteran has not contended, nor does the evidence indicate, that any missing teeth or bone or tissue loss constituted loss of substance of the body of the maxilla or the mandible. Rather, service treatment records (STRs) reflect treatment for caries and nonrestorable tooth extractions, and missing teeth. There is no competent evidence in conflict with the above as the Veteran testified that poor dental treatment in service caused his teeth to decay and resulted in tooth extractions but did not describe any compensable dental disability. Post-service VA dental treatment records indicate treatment for nonrestorable carious teeth, periodontal disease, and fractures resulting in extraction of erupted teeth and subsequent evaluation for complete dentures with adequate maxillary bone and tissue support. The Board is sympathetic to the concerns that have been voiced, including the Veteran’s contentions that his in-service injury resulted in extensive dental treatment, pain, and financial obligation; unfortunately, service connection for compensation purposes may not be awarded unless certain types of dental disabilities are present, which is not the case here. See 38 C.F.R. §§ 3.381(b), 4.150. As the Veteran seeks service connection for a dental disorder that may not be considered for compensation purposes, the claim for service connection for compensation purposes must be denied. REASONS FOR REMAND The Board finds additional development is warranted prior to the adjudication of the remaining claims of entitlement to service connection for a bilateral knee disability and a respiratory disability. Specifically, additional medical opinions are warranted to ascertain etiology of the disorders that account for all relevant evidence of record and theories of entitlement. 1. Knees Initially, the Board notes that the Veteran testified that he was medically discharged for his bilateral knees. His DD Form 214 indicates reason for separation due to physical disability established by Chief of Naval Personnel and September 1973 service personnel records indicate the Veteran waived his right to a hearing before a Physical Evaluation Board. Although STRs have been associated with his record, his October 1972 entrance examination is largely illegible. As the record is pertinent to his bilateral knee claim, on remand additional development should be undertaken to attempt to associate a legible copy of his October 1972 entrance examination report with his claims file. See 38 U.S.C. §§ 1111, 1131, 1132 (a veteran is presumed to be in sound condition when he entered into military service, except for conditions noted on the entrance examination). Further, the Board finds an additional medical opinion is required to ascertain whether any current knee disability, to include arthritis, is a continuation of a knee disability that existed prior to service, described as a football injury, and if so, whether in-service symptomatology is indicative of a worsening of a bilateral knee disability. Here, the Veteran’s October 1972 entrance report of medical history indicates he dislocated his knees one year prior with no operation. STRs note treatment for pain, effusion, and buckling and periodically assessed for fitness for duty. February 1973 STRs indicate the Veteran’s knee symptoms of pain, effusion, and buckling were treated with a right knee splint for four weeks and that he experienced increased symptoms with long standing, walking, running, or strenuous jumping. An April 1973 STR provisionally diagnosed loose bodies beneath the right patella and right patella chondromalacia with a notation that the patellas were dislocated three to four years prior with recurrent dislocations since. The October 1973 separation examination noted the Veteran was informed that he had torn cartilage and ligaments as well as loose bodies in both knees. A January 1974 VA examination found torn ligaments and cartilage bilaterally with foreign body beneath the right knee cap and calcium build-up above both knee caps occurred in high school playing football and noted minor in-service knee injuries, current complaints of knee weakness, and diagnosed bilateral mild to moderate knee instability. A November 2009 VA examination noted diagnoses of bilateral knee arthritis and a loose body of the right knee with reported weakness, stiffness, and swelling and found the bilateral knee disability unrelated to service, explaining the Veteran’s medical records determined the knee condition existed prior to service and did not support any claim for aggravation or injury to the knees in service but rather confirmed that the knee conditions existed prior to military service, that his separation was due to the same pre-existing knee conditions, and that it was due to the natural progression of the disease. The Board finds the claim must be remanded for an additional medical opinion because the November 2009 examiner did not support his conclusion that a pre-existing bilateral knee condition was not aggravated beyond its natural progression in service; rather, the examiner provided a conclusory statement that such aggravation was not shown in his medical records. Further, the subsequent medical opinion must also address the Veteran competent statements regarding his in-service symptomatology. The Board also notes that the examiner found the Veteran’s current bilateral knee condition less likely than not incurred in service due to medical board findings of a preexisting disorder, but finds the opinion unclear as to whether bilateral knee arthritis is a separate disability or a continuation of the earlier diagnosis as the November 2009 VA examination also noted a right knee loose body. An additional medical opinion would be helpful in determining whether bilateral knee arthritis separately onset during active service or is a continuation of the noted right patella recurrent dislocation, bilateral knee chondromalacia, and right knee osteochondral bodies. 2. Respiratory disorder The Veteran asserts that he has a respiratory disorder related to asbestos exposure on the U.S.S. Tripoli and reported observing a haze of asbestos fibers for several weeks while the ship turbines were being repaired around August 1973. The Veteran also indicated at his hearing that he believed his respiratory disorder was related to exposure to herbicide agents and contended that he went on mail runs to Vietnam during the course of duties with Operation End Sweep and reported direct exposure from the water and from cleaning up a spilled container of herbicide agents on deck. Service personnel records note the Veteran was assigned to the U.S.S. Tripoli while it was within a tax free/hostile fire zone in July 1973 and that the ship participated in Operation End Sweep from April 1973 to July 1973. An article from the Naval Historical Center noted the U.S.S. Tripoli had to repair its propulsion plant in April 1973 and June 1973 while assisting in Operation End Sweep and provided logistics support and inter-ship transportation services. The Veteran was afforded a February 2010 VA examination and medical opinion that noted the Veteran’s history of smoking one to two packs per day for more than 40 years with claimed exposure to asbestos on a naval ship and also in a post-service occupation due to wrapping pipes with asbestos insulation. The examiner diagnosed COPD and fibrosis and explained that the disorders were unrelated to asbestos exposure in the Navy due to minimal asbestos exposure based on his job title of airman apprentice and recruit. The examiner noted that progressive dyspnea, cough, sputum production, and wheezing were unusual symptoms for asbestos-induced lung disease but tended to be a consequence of serious smoking and noted the Veteran’s long history of smoking and additional asbestos exposure since service. The opinion was affirmed in an April 2010 addendum opinion. The Board finds the prior medical opinions somewhat unclear as the rationales appear to indicate that post-service asbestos exposure and history of smoking were the primary causes of his current respiratory disorders and notes that the in-service injury or incident need not be the only or most prevalent cause of the disease to warrant service connection. Further, the Veteran has also asserted that his respiratory disability may be related to exposure to herbicide agents. Although a December 2012 formal finding determined there was a lack of information required to verify herbicide exposure, since that time the Veteran testified to going ashore to Vietnam from the U.S.S. Tripoli and provided a ship list documenting the ship’s travel on Vietnam’s close coastal waters with evidence that smaller craft from the ship regularly delivered supplies or troops ashore and indicating that any veteran aboard the mother ship during the time frame of offshore Vietnam landing craft activity will be eligible for the presumption of exposure if a lay statement of personally going ashore with the landing craft is provided. An opinion on this matter has not been obtained. Therefore, remand is required to obtain a complete medical opinion in response to all theories of entitlement. The matters are REMANDED for the following actions: 1. Obtain any VA treatment records dating since May 2018. 2. Attempt to obtain a legible copy of the Veteran’s service entrance examination report. All attempts should be clearly documented in the claims file. 3. After records development is completed, send the claims file to an examiner to determine whether the Veteran has a current bilateral knee disability related to active service. If a new examination is deemed necessary to respond to the request, one should be scheduled. The examiner is asked to address the following: a) List all current knee disabilities. b) Did a knee disability(ies) clearly and unmistakably exist prior to the Veteran’s military service? If so, please list the knee disability(ies) and identify the clear and unmistakable evidence supporting such a finding. c) If a knee disability preexisted service, is it clear and unmistakable that the disability was not aggravated by military service? If there was no aggravation please identify the clear and unmistakable evidence supporting this finding. d) For each current knee disability that did not preexist service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the current knee disorder was incurred in active service or is otherwise etiologically related to active service. In answering the above, the examiner is asked to address the STRs relating to treatment for bilateral knee symptoms and Veteran’s statements of increased bilateral knee symptoms in service and since. A rationale is requested for any opinion expressed as the Board is precluded from making any medical findings. 4. After records development is completed, send the claims file to an examiner to determine whether any respiratory disorder is related to the Veteran’s service. If a new examination is deemed necessary to respond to the request, one should be scheduled. Following a review of the Veteran’s records, the examiner is directed to provide a medical opinion related to any respiratory diagnosis present during the period of the claim, to include COPD and fibrosis. Specifically, the examiner is asked to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the disorder was incurred in active service or is otherwise etiologically related to active service, to include claimed exposure to asbestos and/or herbicide agents. (Continued on the next page) A rationale is requested provided for any opinion expressed as the Board is precluded from making any medical determinations. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Odya-Weis, Counsel