Citation Nr: 18149687 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 15-26 933 DATE: November 13, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for a gum condition is denied. REMANDED Entitlement to service connection for a left knee condition is remanded. Entitlement to service connection for a bilateral foot condition is remanded. Entitlement to service connection for allergic rhinitis is remanded. Entitlement to service connection for sinusitis is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his bilateral hearing loss disability is likely related to active military service. 2. The Veteran is not shown to have a dental disability for which compensation is payable. CONCLUSIONS OF LAW 1. The criteria for service connection are met for bilateral hearing loss. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.385 (2017). 2. The criteria for establishing service connection for a dental disorder for compensation purposes have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.381, 4.150 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from October 1994 to October 1998. During his period of service, the Veteran earned the National Defense Service Medal, Letter of Appreciation, Sea Service Deployment Ribbon, and Good Conduct Medal. The Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide adequate reasons or bases supporting its decision, there is no requirement that each item of evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board will summarize the evidence as deemed appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to prevail on a claim of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including other organic diseases of the nervous system, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). Bilateral Hearing Loss Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz), and the threshold for normal hearing is from 0 to 20 dB. Higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 156 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2017). With respect to the first element of service connection, a current diagnosis, the Veteran underwent a VA audio examination in January 2013. The examiner diagnosed bilateral hearing loss for VA purposes. 38 C.F.R. § 3.385. Thus, the current disability criterion for service connection is met for bilateral hearing loss. See Shedden, supra. Next, the Board must consider whether the Veteran sustained a disease or injury in service. The Veteran has reported that he was exposed to acoustic trauma in his duties as a Rifleman during service. He also contends that he was exposed to mechanical hammering and engine noise in his transportation duties. The Veteran’s DD-214 confirms that his military occupational specialty (MOS) was Motor Vehicle Operator. The Board finds that the Veteran is competent to report exposure to loud noise in service, and that such assertion is credible because it is consistent with the circumstances of service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). As such, in-service noise exposure can be conceded, and the second element of service-connection is met for bilateral hearing loss. See Shedden, supra. The remaining question is whether there is a medical nexus between the Veteran’s in-service noise exposure and his current bilateral hearing loss. See Shedden, supra. As noted above, the Veteran was afforded a VA examination in January 2013. The examiner opined that it was less than likely that the Veteran’s hearing loss was related to military noise exposure, as the Veteran’s examinations throughout service indicated his hearing was within normal limits bilaterally. The examiner indicated that there were no reports of hearing problems noted in the service treatment records. He further noted that no examination was located from the year after service indicating the presence of a hearing loss by that time. However, the examiner did not address the apparent decrease in hearing acuity at 500Hz, 1000Hz, 2000Hz, 3000Hz, and 4000Hz from entrance to separation and whether this may provide the basis for a medical nexus between the Veteran’’ service and his current hearing loss, notwithstanding the lack of hearing loss for VA purposes at separation. This weakens the probative value of the opinion. See Hensley, supra. The Board notes that the hearing loss claim could be remanded for a new VA opinion that addresses the Veteran’s change in hearing during service. However, in light of the decrease in hearing acuity in service, complaints of continuous hearing-related symptoms since service, grant of service connection for tinnitus based on in-service noise exposure, and the limited probative value of the negative opinion, the Board finds that the evidence is, at minimum, in equipoise regarding the question of whether the Veteran’s current bilateral hearing loss is related to his military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The benefit-of-the-doubt will be conferred in the Veteran’s favor and remand is not necessary. The claim for service connection for bilateral hearing loss is granted. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Dental Condition The Veteran contends that service connection is warranted for a gum condition. Disability compensation and VA outpatient dental treatment may be provided for certain specified types of service-connected dental disorders. For other types of service-connected dental disorders, the claimant may receive treatment only and not compensation. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150, 17.161. Dental disabilities that may be compensable are set forth in 38 C.F.R. § 4.150. They 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. Under 38 C.F.R. § 3.381, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal diseases are to be considered service-connected only for the purpose of establishing eligibility for outpatient dental treatment as provided in 38 C.F.R. § 17.161. Thus, to warrant compensation for a dental disability, as opposed to treatment only, the evidence must show not only that there was a dental trauma or disease, but that the trauma or disease caused a loss of substance of the body of the maxilla or mandible resulting in a loss of teeth. Review of the evidence of record does not support a finding of any trauma or disease that caused loss of the substance of the body of the maxilla or mandible, resulting in any tooth loss. 38 C.F.R. § 4.150, Diagnostic Code 9913, Note. Service dental records indicate slight calculus and gingivitis in October 1994. A diagnosis of caries and gingivitis was noted in April 1995 and, upon examination in October 1995, the dentist noted extensive caries. In April 1996, the dentist indicated that the Veteran had fair oral hygiene and noted a diagnosis of generalized marginal gingivitis. In April 1997, the dentist diagnosed caries, gingivitis, asymptomatic third molars, and asymptomatic temporomandibular joints (TMJ). An August 1998 dental treatment record indicates that Tooth number 1 was erupted and tooth number 16 was impacted. Tooth numbers 17 and 32 were indicated to be at increased risk for infection. The dentist diagnosed insufficient arch length and noted a referral for extraction of the affected teeth. Post-service treatment records do not show any treatment for gum disease. An April 2013 VA treatment record indicates that the Veteran has fair oral hygiene and documented the condition of the tooth supporting structures as fair. The Veteran’s gums were not noted to be swollen. Based on the relevant medical and other evidence, the Board finds that the Veteran does not have a compensable dental disorder. There is no evidence of record that he has a current dental disability that is due to loss of substance of body of maxilla or mandible through trauma or osteomyelitis. Rather, the evidence of record reflects that the Veteran received treatment in service for gingivitis and caries, as well as erupted and impacted teeth. There is no indication that treatment was due to loss of substance of body of maxilla or mandible. The Veteran has not presented any competent evidence that he has a dental disability for which service connection for compensation purposes may be granted. Although the Board is sympathetic to the Veteran’s claim, the preponderance of the evidence is against the Veteran’s claim of service connection for a dental disability for compensation purposes. Accordingly, the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). REASONS FOR REMAND Although the Board regrets the delay, remand is necessary to ensure that there is a complete record on which to decide the Veteran’s claims. The Board notes that the Veteran has not been afforded VA examinations with respect to his current claims for service connection for a left knee condition, a bilateral foot condition, allergic rhinitis, and sinusitis. VA’s duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159 (2017). Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Left Knee Condition The Veteran contends that he experienced weakness and pain in the left knee during service and his condition has continued to deteriorate since separation from service. A review of the Veteran’s VA treatment records shows a current diagnosis of arthralgia. Treatment records also show that the Veteran underwent arthroscopy and meniscus repair in 2012. As such, the Board finds that a remand for examination is warranted to ascertain whether his current left knee condition is etiologically related to his active duty service. See McLendon, supra. Bilateral Foot Condition The Veteran contends that he has been experiencing his bilateral foot condition since his separation from service. A review of the Veteran’s VA treatment records shows a current diagnosis of tinea pedis. As such, the Board finds that a remand for examination is warranted to ascertain whether his current tinea pedis is etiologically related to his active duty service. See McLendon, supra. Sinus Conditions The Veteran contends that he experienced sinus conditions in service, to include allergic rhinitis and sinusitis, and the conditions have continued since that time. He has stated that he self-medicated in service and has continued to do so since separation. Upon review of the evidence of record, the issue is raised of whether the Veteran had an upper respiratory condition that preexisted service. Notably, upon entrance to service in October 1993, the Veteran’s report of medical examination indicates normal findings upon examination of the sinuses. However, a June 1989 pre-service private treatment record indicates a diagnosis of allergic rhinitis. Every Veteran is presumed to have been in sound condition at entry into service, except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Determination of the existence of a preexisting condition may be supported by contemporaneous evidence, or recorded history in the record, which provides a sufficient factual predicate to support a medical opinion, see Miller v. West, 11 Vet. App. 345, 348 (1998), or a later medical opinion based upon statements made by the Veteran about the pre-service history of the condition. Harris v. West, 203 F.3d 1347 (Fed. Cir. 2000). The burden is on VA to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran’s disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004). In this case, although the Veteran has a pre-service diagnosis of allergic rhinitis, the entrance examination was nevertheless normal. Thus, a sinus condition was not noted at service entrance, and the presumption of soundness applies. See McKinney v. McDonald, 28 Vet. App. 15, 22-23 (2016). As such, an examination is warranted to determine whether the Veteran’s sinus condition clearly and unmistakably preexisted service, and if so, whether it was aggravated therein. The matters are REMANDED for the following action: Schedule the Veteran for VA examinations with the appropriate examiner(s) to address the nature and etiology of his left knee condition, bilateral foot condition, allergic rhinitis, and sinusitis. The examiner(s) must review pertinent documents in the Veteran’s claims file in conjunction with the examinations. This must be noted in the examination reports. (a.) With regard to a left knee condition, the examiner must state whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s current left knee condition had its onset in service or is otherwise etiologically related to active service. (b.) With regard to a bilateral foot condition, the examiner must state whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s current bilateral foot condition, to include tinea pedis, had its onset in service or is otherwise etiologically related to active service. (c.) With regard to a sinus condition, the examiner must state whether the Veteran’s sinus condition, to include allergic rhinitis and sinusitis, clearly and unmistakably (obviously or manifestly) exist prior to entrance into service. If so, was it clearly and unmistakably (obviously or manifestly) NOT aggravated (permanently worsened beyond the natural progression) during active service? Note: The term “aggravated” means an increase in severity of the underlying disability that is not due to the natural progress of the disease. If the VA examiner concludes that there is no clear and unmistakable evidence that the Veteran’s sinus condition existed prior to service and was not aggravated by service, is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s sinus condition, to include to include allergic rhinitis and sinusitis, is related to the Veteran’s service? (Continued on the next page)   Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). L. BARSTOW Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Joseph, Associate Counsel