Citation Nr: 18148564 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 15-23 330A DATE: November 8, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for wisdom tooth complication is denied. Entitlement to service connection for left elbow epicondylitis is denied. Entitlement to service connection for a left disability, to include ulnar nerve palsy, is denied. Entitlement to service connection for right elbow epicondylitis is denied. Entitlement to service connection for disability of the right hand is denied. Entitlement to service connection for a right arm disability is denied. Entitlement to service connection for a psychiatric disability to include posttraumatic stress disorder (PTSD) is dismissed. FINDINGS OF FACT 1. The Veteran has not had a hearing loss disability for VA purposes at any time during the pendency of the appeal. 2. The weight of the competent evidence of record reflects that the Veteran does not have a dental disability related to a dental trauma or disease affecting the bone of the jaw. 3. The Veteran has not had a left elbow epicondylitis disability at any time during the pendency of the appeal. 4. The Veteran has not had left ulnar nerve palsy at any time during the pendency of the appeal. 5. The Veteran has not had a right elbow epicondylitis disability at any time during the pendency of the appeal. 6. The Veteran has not had disability of the right hand at any time during the pendency of the appeal. 7. The Veteran has not had a right arm disability at any time during the pendency of the appeal. 8. In an August 2013 rating decision, the RO granted in full the benefit sought on appeal for service connection for a psychiatric disability. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385. 2. The criteria for establishing service connection for a dental disorder for compensation purposes have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.381, 4.150 (2018). 3. The criteria for service connection for left elbow epicondylitis have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 4. The criteria for service connection for left ulnar nerve palsy have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 5. The criteria for service connection for right elbow epicondylitis have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 6. The criteria for service connection for a disability of the right hand have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 7. The criteria for service connection for a right arm disability have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 8. There remain no allegations of errors of fact or law for appellate consideration regarding the claim for service connection for posttraumatic stress disorder. 38 U.S.C. §§ 1101, 1110, 1112, 1113 7105(d)(5); 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1993 to May 2013. 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, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. In addition, sensorineural hearing loss will be presumed to have been incurred in or aggravated by service if it had become manifest to a degree of 10 percent or more within one year of a veteran’s separation from service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With chronic diseases shows as such in service or within the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. Continuity of symptomatology is required only where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after service is required to support the claim. 38 C.F.R. § 3.303(b). This regulation pertains to “chronic diseases” enumerated in 38 C.F.R. § 3.309(a) (listing named chronic diseases). Walker v. Shinseki, 708 F.3d 1331, 1336-37 (Fed. Cir. 2013). The United States Court of Appeals for the Federal Circuit (Federal Circuit) noted that the requirement of showing a continuity of symptomatology after service is a “second route by which a veteran can establish service connection for a chronic disease” under subsection 3.303(b). Walker, supra. Showing a continuity of symptoms after service itself “establishes the link, or nexus” to service and also “confirm[s] the existence of the chronic disease while in service or [during the] presumptive period.” Id. (holding that section 3.303(b) provides an “alternative path to satisfaction of the standard three-element test for entitlement to disability compensation”). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran’s favor. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for bilateral hearing loss is denied. The Veteran asserts entitlement to service connection for hearing loss. There is a difference between hearing loss and hearing loss disability. VA regulations establish when such hearing loss reaches the level of disability for VA purposes. Palczewski v. Nicholson, 21 Vet. App. 174, 179-80 (2007). Hearing loss disability claims are governed by 38 C.F.R. § 3.385. This regulation provides hearing loss is a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater. 38 C.F.R. § 3.385. Alternatively, a hearing loss disability can be established by auditory thresholds for at least three of those frequencies at 26 decibels or greater or by speech recognition scores under the Maryland CNC Test at less than 94 percent. 38 C.F.R. § 3.385. The Veteran did not exhibit hearing loss within the parameters of 38 C.F.R. § 3.385 at a July 2013 VA examination. See June 2013 VA Examination. Later audiometric testing at a VA examination in June 2015 also showed no hearing loss disability. See June 2015 VA Examination. Accordingly, the evidence of record does not establish the Veteran has or had a right ear hearing loss disability during the pendency of the appeal as defined under 38 C.F.R. § 3.385. The Board notes that the Veteran is competent to report when he first experienced hearing problems; however, he is not competent to set forth specific Hertz findings as he does not possess that expertise. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Moreover, competent evidence, the audiometric findings, indicates that the Veteran does not have the disability for which service connection is sought and there can be no valid claim for service connection for the disability. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for bilateral hearing loss. The Veteran has not submitted evidence of a hearing loss disability and the record does not establish the presence of such disability. As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364-65 (Fed. Cir. 2001) (holding that “the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant”). 2. Entitlement to service connection for dental disability claimed as wisdom tooth complication is denied. The Veteran contends he incurred dental disability as a result of a wisdom tooth extraction in service. See December 2012 Statement. In the VA benefits system, dental disabilities are treated differently than medical disabilities. Disability compensation is only available for certain types of dental and oral conditions, including 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, and 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 (2018); see Simington v. West, 11 Vet. App. 41, 44 (1998). Furthermore, dental conditions such as treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease will be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment but will not be considered for compensation. 38 U.S.C. § 1712 (2012); 38 C.F.R. §§ 3.381, 4.150 (2018). As noted above, entitlement to service connection for treatment purposes has been referred to the AOJ for appropriate action and that matter will not be discussed further at this time. Here, the Veteran was examined in November 2013, where the examiner noted he underwent third molar extraction in service. See November 2013 VA Examination. The examiner noted localized periodontal disease present but no remnants of tissue injury or osteonecrosis. The examiner opined that the Veteran’s chronic dental condition was due to local factors and not related to or caused by third molar surgery. The Board is sympathetic to the Veteran’s case, but finds that the evidence of record does not support a finding of service connection for a dental disability for compensation purposes is not warranted. The Veteran submitted private dental records, however, these records and the VA examination do not indicate the Veteran has been diagnosed with any of the dental or oral conditions listed in 38 C.F.R. § 4.150, such as impairment of the mandible, loss of a portion of the ramus, or loss of a portion of the maxilla. See November 2013 Private Records. Furthermore, the evidence does not show the incurrence of any in-service dental trauma. Accordingly, because the Veteran is not shown to have sustained compensable “dental trauma” to his teeth in service, or to have one of the dental disorders listed under 38 C.F.R. § 4.150, a compensable dental condition is not shown and service connection of dental trauma for compensation purposes must be denied. To the extent that the Veteran is arguing that removal of his wisdom tooth removal constituted dental trauma, service trauma “does not include the intended effects of treatment provided during the veteran’s military service.” VA Gen. Prec. Op. 5-97 (Jan. 22, 1997); 38 C.F.R. § 17.161 (2018). The United States Court of Appeals for the Federal Circuit has also confirmed that service trauma does not “include the intended results of proper medical treatment provided by the military.” Nielson v. Shinseki, 607 F.3d 802, 805 (Fed. Cir. 2010). Accordingly, notwithstanding the discussion of this issue during the Board hearing, wisdom tooth removal cannot be considered “trauma” for purposes of his claim. The Board also points out that the dental records do not show that the Veteran sustained loss of substance of the body of the maxilla or mandible, resulting in loss of teeth during service. In sum, the Veteran has not shown that he suffers from a dental condition for which service connection may be granted, and the evidence is against a finding that the Veteran suffered an in-service dental trauma or disease impacting the bone of the jaw. Moreover, the Board has considered whether third molar extraction and its consequences could fall within the limited category of matters for which entitlement to service connection for dental disability for compensation purposes may be granted and can find no laws or regulations that can be so construed. See 38 C.F.R. § 3.103(a) (VA must render a decision which grants every benefit that can be supported in law while protecting the interests of the Government); National Organization of Veterans Advocates v. Secretary of Veterans Affairs, 710 F.3d 1328, 1330 (Fed. Cir. 2013) (noting the uniquely pro-claimant principles underlying the veterans’ benefits system). Accordingly, service connection for a dental disability is denied. As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b) (2012); Ortiz, 274 F.3d at 1365. 3. Entitlement to service connection for left elbow epicondylitis is denied. The Veteran contends he had a left elbow disorder due to service. See December 2012 Statement. The Board notes the Veteran is service-connected for left radial neuropathy of the left forearm, status post contusion due to a motorcycle collision in service. See December 2016 Code-sheet; see also September 2007 Service Record. The Veteran is also service-connected for residuals of closed fracture of the left clavicle. However, following service, a July 2013 VA examination and later VA treatment records do not indicate diagnosis or treatment for an additional left elbow disability. The July 2013 VA examination shows left elbow epicondylitis was not found on physical examination and x-ray of the left elbow in July 2013 did not show any abnormality. See July 2013 VA Examination. Physical examination of the left elbow did not reveal limitation of motion or functional loss. While the Veteran’s VA medical records contain ongoing complaints of pain, the Board notes a February 2017 treatment record shows nerve conduction testing was unremarkable. See February 2017 Treatment Note. Moreover, as noted, the Veteran is already compensated for left radial neuropathy of the left forearm. Further, Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1110; see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As the probative evidence indicates there is no left elbow disability, the Board does not reach the issue of in-service injury or whether the claimed disability is related to service. In the absence of a current disability, service connection cannot be established. See Holton, 557 F.3d at 1366 (holding that entitlement to service connection requires, among other things, evidence of a current disability). A preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt doctrine does not apply and the claim is denied. 38 U.S.C. § 5107(b) (2012); Ortiz, 274 F.3d at 1365. 4. Entitlement to service connection for left arm disability, to include ulnar nerve palsy is denied. The Veteran contends he has a left arm disorder, to include ulnar nerve palsy, that is due to service. See December 2012 Statement. As to the presence of ulnar nerve palsy during the pendency of the appeal, the Board finds a preponderance of the evidence is against this finding. The VA examination in July 2013 found left radial neuropathy and no evidence of ulnar nerve palsy. See July 2013 VA Examination. The Board also notes a February 2017 treatment note shows nerve conduction testing was unremarkable. See February 2017 Treatment Note. As a lay person, the Veteran is competent to report on that which he has personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Although laypersons are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a layperson, as it involves making definitive clinical diagnoses based on knowledge of neurology. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). While the Veteran is certainly competent to report that he experiences pain, numbness, and tingling in his left arm, he is not competent to provide a medical diagnosis and etiology. His assertions are therefore not competent evidence of a medical nexus. As the probative evidence of record indicates there is no additional left arm disability separate from left radial neuropathy, including ulnar nerve palsy, the Board does not reach the issue of in-service injury or whether the claimed disability is related to service. In the absence of a current disability, service connection cannot be established. See Holton, 557 F.3d at 1366. A preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt doctrine does not apply and the claim is denied. 38 U.S.C. § 5107(b) (2012); Ortiz, 274 F.3d at 1365. 5. Entitlement to service connection for right elbow epicondylitis is denied. The Veteran contends he has a right elbow disability, to include epicondylitis, that is due to service. See December 2012 Statement. However, following service, a July 2013 VA examination and later VA treatment records do not indicate diagnosis or treatment for a right elbow disability. The July 2013 VA examination shows right elbow epicondylitis was not found on physical examination and x-ray of the right elbow in July 2013 did not show any abnormality. See July 2013 VA Examination. Physical examination of the right elbow did not reveal limitation of motion or functional loss. While the Veteran’s VA medical records contain ongoing complaints of elbow pain, the Board notes a February 2017 treatment note shows nerve conduction testing was unremarkable. See February 2017 Treatment Note. As the probative evidence of record indicates there is no right elbow disability, the Board does not reach the issue of in-service injury or whether the claimed disability is related to service. In the absence of a current disability, service connection cannot be established. See Holton, 557 F.3d at 1366. As probative evidence is against the Veteran’s claim, the benefit-of-the-doubt doctrine does not apply and the claim is denied. 38 U.S.C. § 5107(b) (2012); Ortiz, 274 F.3d at 1365. 6. Entitlement to service connection for a disability of the right hand is denied. The Veteran contends he has disability of the right hand that is due to service. See December 2012 Statement. However, following service, a July 2013 VA examination and later VA treatment records do not indicate diagnosis or treatment for right hand disability. The July 2013 VA examination shows right hand disability was not found on physical examination. See July 2013 VA Examination. Physical examination of the right hand did not reveal limitation of motion or functional loss. As the evidence of record indicates there is no disability of the Veteran’s right hand, the Board does not reach the issue of in-service injury or whether the claimed disability is related to service. In the absence of a current disability, service connection cannot be established. See Holton, 557 F.3d at 1366. As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b) (2012); Ortiz, 274 F.3d at 1365. 7. Entitlement to service connection for a right arm disability is denied. The Veteran contends he has a right arm disability that is due to service. See December 2012 Statement. However, following service, a July 2013 VA examination and later VA treatment records do not indicate diagnosis or treatment for a right arm disability. The July 2013 VA examination shows a right arm disability was not found on physical examination. See July 2013 VA Examination. Physical examination of the right upper extremity did not reveal limitation of motion or functional loss. Accordingly, where, as here, competent medical evidence indicates that the Veteran does not have the disability for which service connection is sought, there can be no valid claim for service connection for the disability. See Holton, 557 F.3d at 1366. The Veteran has not established the presence of a right arm disability during the appellate period and the Board does not reach the issue of in-service injury or whether the claimed disability is related to service. As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b) (2012); Ortiz, 274 F.3d at 1365. In considering the above evidence, the Board is cognizant of the holding of Saunders v. Wilkie, 886 F.3d. 1356 (Fed. Cir. 2018). In that decision, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. This case is distinguishable, however, insofar as the June 2013 VA examination showed no functional impairment of the left elbow or arm aside from already compensated disabilities and no functional impairment of the right hand, elbow or arm. The June 2013 examiner’s findings were based on an examination of the Veteran, his reported history, and a claims file review. The Board finds it to have greater probative value than the lay opinion of the Veteran, who lacks medical training and credentials. Put simply, there is no chronic disability process, diagnosed or otherwise, for which service-connected compensation is warranted. In light of the finding of no current disability, the preponderance of the evidence is against the claim, and the claims must be denied. 38 U.S.C. § 5107 (b). 8. Entitlement to service connection for a psychiatric disability to include PTSD is dismissed. The Veteran filed a claim for anxiety, adjustment disorder, depression, and PTSD. See December 2012 Statement. Following a VA examination in June 2013 where the Veteran was found to manifest depressive disorder, service connection was established in an August 2013 rating decision. See June 2013 VA Examination; see also August 2013 Rating Decision. Thereafter, the Veteran filed a notice of disagreement for service connection for PTSD. See February 2014 Notice of Disagreement. The Board notes the June 2013 VA examination specifically found he did not meet the criteria for a diagnosis of PTSD. Importantly, a claim for one acquired psychiatric disability is to be construed as a claim for any acquired psychiatric disability. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, the Veteran’s symptoms of anxiety and depression are already service-connected. Indeed, depression and PTSD are rated identically under the General Rating Formula for Mental Disorders under 38 C.F.R. § 4.130. See Diagnostic Codes 9411, 9434. Awarding service connection for more than one psychiatric disability would not afford the Veteran with any greater benefit because the grant of service connection for PTSD contemplates his symptoms of anxiety, depression, and memory loss. The Board notes, in this regard, that “[t]he evaluation of the same disability under various diagnoses is to be avoided.” 38 C.F.R. § 4.14. Under 38 U.S.C. § 7105 (d)(5), the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. In granting service connection for depression, the RO granted in full the benefit the Veteran sought on appeal. Hence, there remain no allegations of errors of fact or law for appellate consideration regarding the claim for service connection for PTSD, the Board does not have jurisdiction to review them, and they are dismissed. The Board is grateful for the Veteran’s honorable service, and this decision in no way detracts from the Veteran’s service. Unfortunately, however, for the reasons and bases discussed above, the competent and probative evidence of record preponderates against the claims and the must be denied. J. CONNOLLY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Trickey, Jonathan