Citation Nr: 18149222 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 15-18 854 DATE: November 9, 2018 ORDER Service connection for lumbar spine disorder is denied. Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. Service connection for a dental disorder for compensation purposes is denied. REMANDED Service connection for traumatic brain issue (TBI). Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression. FINDINGS OF FACT 1. The Veteran served on active duty from December 1964 to September 1967. He also served on active duty for training (ACDUTRA) from March to September 1963. 2. A chronic lumbar spine disorder was not shown in service and the current A lumbar spine disorder is not otherwise caused by or related to any incident of service, to include a motor vehicle accident in 1966. 3. Bilateral hearing loss was not shown during service, was not shown to a compensable degree within one year of service, symptoms were not continuous since service, and hearing loss is not otherwise caused by or related to any incident of service. 4. Tinnitus was not shown during service, was not shown to a compensable degree within one year of service, symptoms were not continuous since service, and hearing loss is not otherwise caused by or related to any incident of service. 5. A dental disorder for which compensation can be authorized has not been shown. CONCLUSIONS OF LAW 1. A lumbar disorder was not incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2018). 2. Bilateral hearing loss was not incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2018). 3. Tinnitus was not incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 4. The criteria for establishing service connection for a dental disorder for compensation purposes have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.381, 4.150 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a procedural matter, a claim of service connection for a dental disorder is also a claim for VA outpatient dental treatment under 38 C.F.R. § 3.381. Mays v. Brown, 5 Vet. App. 302 (1993). For dental claims, the RO adjudicates the claim of service connection for compensation benefits and the VA Medical Center (VAMC) adjudicates the claim for outpatient treatment. As the dental disorder stems from an adverse determination by the RO, the appeal is limited to the issue of service connection for a dental disorder for the purpose of compensation. Entitlement to service connection for a dental disorder for the purpose of obtaining VA outpatient dental treatment is referred to the Agency of Original Jurisdiction (AOJ) for additional referral to the appropriate VAMC. 38 C.F.R. §§ 17.161, 19.9(b). Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303 (a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Lumbar Spine Disorder The Veteran claims that service connection is warranted for a lumbar spine disorder. At the February 2013 VA spine examination, he indicated that he injured his spine in a motor vehicle accident in service in 1966. He reported that he was seen a few times and then released. There were no fractures of the spine and no surgeries. He indicated that he has had back pain on and off since discharge. He reported that he ended up having lower back pain so severe that he had a lumbar spine fusion in 2006. The STRs reflect complaints of back pain in March 1966 due to motor vehicle accident two days earlier. Examination revealed a contusion and the diagnosis was contusion. He was prescribed two medications and instructed to use a heating pad. An April 1966 follow up note indicated that he was about the same. He was continued on the same regimen. No further complaints or findings involving the Veteran’s back were noted in the STRs. Such absence of findings or treatment for any chronic back disorder, including arthritis, during service, in this context, is highly probative contemporaneous evidence that he did not have characteristic manifestations of a chronic back disorder during service. Even considering that the Veteran injured his back pain as reported in a 1966 motor vehicle accident, the evidence weighs against a medical nexus. Specifically, a February 2013 VA examination report notes a current diagnosis of status/post lumbar spine fusion with post lumbar laminectomy syndrome. Therefore, a current disorder has been shown. However, the medical evidence does not support a finding that the Veteran had arthritis of the lumbar spine during service or within one year of service discharge. Further, the medical evidence does not show that the current lumbar spine disorder is etiologically related to service. In this regard, the only medical opinion on point, that of the February 2013 VA examiner, weighs against the claim. Specifically, the February 2013 VA examiner opined that it was less likely than not that the current lumbar spine condition was related to service. The examiner reasoned that even though the Veteran was in a motor vehicle accident in 1966, and was seen twice for back pain in service, his current back disorder was due to his 2006 lumbar spine surgery and fusion. The examiner explained that if the current condition was due to the 1966 motor vehicle accident, the Veteran would have been incapacitated and hospitalized for weeks on end in service, which was not the case. The Veteran was not discharged until 1967 and was not medically discharged due to a lumbar spine disorder. The examiner concluded that it was unlikely that a motor vehicle accident in 1966 would be responsible for lumbar spine surgery around 50 years later. Therefore, the medical evidence of record does not support the claim on a direct basis. Bilateral Hearing Loss For VA purposes, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater, the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 dB or greater, or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Additionally, the Court has held that “the threshold for normal hearing is from 0 to 20 dBs, and higher threshold levels indicate some degree of hearing loss.” See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran has claimed entitlement to service connection for bilateral hearing loss. He has been diagnosed with bilateral hearing loss disability that meets the VA regulatory criteria at 38 C.F.R. § 3.385. In addition, his service personnel records establish that he was a heavy vehicle driver in 1965 during service in Korea. As such, a current disability has been shown, and noise exposure is conceded. As to in-service incurrence, the service treatment records (STRs) reflect no hearing complaints. All examinations and audiograms reveal normal hearing/no ear complaints. Further, the Veteran does not contend that he sought treatment for hearing loss during service. Therefore, the second element of direct service connection has not been met. As to continuity of symptomatology, the earliest recorded diagnosis of hearing loss was in the February 2013 VA examination report and VA treatment records dated in February 2013. The Veteran did not report any ongoing symptoms of hearing loss at the time and the September 2013 VA examiner specifically noted that the Veteran was discharged from service with clinically normal hearing. This 40 plus-year period between service and the onset of hearing loss and is one factor that weighs against a finding of service continuity. The Board’s reliance on multiple factors, only one of which is an absence of complaints or treatment during the years after service, is consistent with the statutory and regulatory requirements to consider all evidence of record, as well as the Court’s precedential decisions. To the extent that the Veteran contends that he had symptoms of hearing loss in service and since, the medical evidence of record does not support this contention. For these reasons, the medical evidence does not support presumptive service connection under 38 C.F.R. § 3.303(b) based on either “chronic” symptoms in service or “continuous” symptoms since service have not been met. Additionally, the medical evidence does not show that hearing loss manifested to a compensable (i.e., at least 10 percent) degree within one year of service separation. As noted, the earliest record of bilateral hearing loss was not until February 2013, with no earlier complaints; therefore, the medical evidence does not support presumptive service connection under the provisions of 38 C.F.R. § 3.309(a). On the question of a medical nexus between the current bilateral hearing loss and service, the February 2013 VA examiner opined that it was less likely than not that the Veteran’s hearing loss was due to or a result of in-service noise exposure. The audiologist reasoned that The Institute of Medicine determined that there was no scientific basis to support the existence of delayed onset of hearing loss due to noise exposure. Specifically, the examiner noted that the Veteran had normal hearing at service separation. Therefore, the medical evidence does not support the claim on a direct basis. Tinnitus A review of the record reflects that the Veteran has a diagnosis of tinnitus. Specifically, the February 2013 VA examination report notes a diagnosis of tinnitus. Nonetheless, based upon this medical evidence, as well as the fact that tinnitus is a disability for which self-diagnosis is appropriate, Charles v. Principi, 16 Vet. App. 370 (2002), a current disability has been shown. However, service connection for tinnitus is not warranted based on a chronicity during service or a continuity of symptomatology after service. In this regard, the Veteran had no complaints or treatment for tinnitus while in service and the medical evidence does not document complaints of tinnitus until February 2013. The presumption of service connection for tinnitus that manifests to a compensable degree within one year after service separation also does not apply. Notably, the objective evidence of record establishes that the Veteran did not have tinnitus within one year of his separation from service. As indicated above, the first evidence of any complaint of tinnitus was in 2013, over 40 years after separation from active service. Therefore, the medical evidence does not support the claim based on the one-year presumption or on continuity. With respect to the claims for the lumbar spine, hearing loss, and tinnitus, the Board has considered the Veteran’s lay statements that his claims were caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer an opinion as to the etiology of his current disorders due to the medical complexity of the matters involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. Such competent evidence has been provided by the medical personnel who have examined the Veteran during the current appeal and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the examination report and clinical findings than to his statements. As such, the medical records are more probative than the Veteran’s lay assertions of a connection with service. In sum, after a careful review of the evidence, the benefit of the doubt rule is not applicable and the appeals are denied. Dental Condition Under current legal authority, compensation is only available for certain types of dental and oral conditions, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla. See 38 C.F.R. § 4.150. Compensation is available under DC 9913 for loss of teeth only if such loss is due to loss of substance of the body of the maxilla or mandible during service due to in-service trauma or disease such as osteomyelitis, and not to the loss of the alveolar process as a result of periodontal disease. Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease cannot be service connected for purposes of compensation. 38 C.F.R. § 3.381. For compensation purposes, the term “service trauma” does not include the intended effects of therapy or restorative dental care and treatment provided during a veteran’s military service. VAOGCPREC 5-97, 62 Fed. Reg. 15566 (1997); Nielson v. Shinseki, 607 F.3d 802, 804 (Fed. Cir. 2010). The medical and lay evidence of record does not indicate that the Veteran experienced dental trauma during service. The STRs show that he had a tooth extraction in January 1966. There are no further indications of follow up or other related treatment. Despite having in-service dental work noted above, the evidence does not suggest and the Veteran has not claimed that he has experienced loss of substance of the maxilla or mandible. The dental service treatment does not show bone loss of the maxilla or mandible or a disease other than periodontal disease or caries. Any claimed dental disabilities, including tooth fractures, extractions, and the placement of a bridge, and subsequent infections does not constitute an injury for which compensation may be granted. 38 C.F.R. § 3.381 (replaceable missing teeth and treatable carious teeth are not disabilities for compensation purposes). As the evidence does not show loss of teeth due to loss of substance of the body of the maxilla or mandible from trauma, where the lost masticatory surface cannot be restored by suitable prosthesis, the Veteran is not shown to have a dental disability subject to compensation under the laws and regulations administered by VA. In sum, the preponderance of the evidence is against granting service connection for a dental disability for compensation purposes and the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND With respect to a TBI, the claim was denied in a June 2013 rating decision. A timely notice of disagreement was received in June 2013. To date, no statement of the case (SOC) has been issued which addresses this issue, nor has the Veteran indicated his desire to withdraw the claim. Accordingly, a remand of this matter is required such that the requisite SOC may be issued. See Manlincon v. West, 12 Vet. App. 238 (1999). Regarding the claim for service connection for PTSD, the Veteran has been diagnosed with both PTSD and depression. A February 2015 VA treatment record noted that he had been under the care of a private physician for his depression for the past 11 years but no private psychiatric records are associated with the claims file. As such, on remand he should be provided an opportunity to submit these records or provide VA with the information and authorization to obtain such records. Next, the Veteran has set forth several stressors supporting his psychiatric diagnoses. A May 2013 formal finding of lack of information required to corroborate stressors indicated that he did not provide any dates or witnesses and that inquiries through PIES revealed no participation in radiation areas, incidents related to guard duty, duties related to CID, or awards or actions that would indicate participation in combat. One of the Veteran claimed stressors (according to a February 2013 written statement) involves being punched in the nose and hit in the head with a chair at a NCO club. A review of the service treatment records confirms that he was punched in the nose in July 1965; X-rays revealed a fractured nose. The February 2013 VA examination report specifically linked PTSD to the Veteran’s claimed stressor involving shooting a Korean soldier (which has not been corroborated), but it does not contain any opinion regarding the etiology of depression, nor does it contain any opinion regarding whether any psychiatric diagnosis is caused by or related to the confirmed event involving his being punched/getting his nose broken. As such, a remand is required. Additionally, as the most recent VA treatment records of record are dated in April 2015 and the Veteran receives psychiatric treatment through VA, up-to-date VA treatment records should be obtained. The matter is REMANDED for the following actions: 1. Contact the Veteran and request that he identify all private providers of medical treatment for his acquired psychiatric disorder to include depression and PTSD, to specifically include the private treatment provider mentioned in the March 2015 VA treatment record who reportedly treated him for the past several years and request that he provide authorization for release of all such private medical records to VA. All actions to obtain the requested records should be fully documented in the record. The RO must make two attempts to obtain any private records identified, unless the first attempt demonstrates that further attempts would be futile. 2. If private records are identified, but not obtained, the RO must notify the Veteran of (1) the identity of the records sought, (2) the steps taken to obtain them, (3) that the claim will be adjudicated based on the evidence available, and (4) that if the records are later obtained, the claim may be readjudicated. 3. Obtain and associate with the claims file all VA treatment records dating from April 2015 to the present. 4. Provide the Veteran with an SOC addressing the issue of entitlement to service connection for TBI. The Veteran and his representative are reminded that to vest the Board with jurisdiction over these issues, a timely substantive appeal must be filed. If a substantive appeal is timely filed, the perfected issue should be returned to the Board. 5. Return the claims file, to include a copy of this remand, to the February 2013VA PTSD examiner (if available) and request that the examiner review the claims file, to include this remand, and provide an opinion as to the following: • Is it at least as likely as not that the Veteran’s PTSD and/or depression (diagnosed and treated with medication according to March 2015 VA treatment records) is/are caused by or otherwise related to any incident of service, to include the June 1965 incident where the Veteran was punched in the nose/got his nose broken? A rationale for all stated opinions must be provided. If the February 2013 VA PTSD examiner is unavailable, the requested opinions should be provided by another qualified examiner. Should the new VA examiner determine that another VA examination is required to provide the requested opinions, one should be scheduled. 6. Readjudicate the issues on appeal. If the benefits sought remain denied, issue a supplemental SOC to the Veteran and his representative and provide an appropriate period for response. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Redman, Counsel