Citation Nr: 18150129 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-38 859 DATE: November 14, 2018 ORDER Entitlement to service connection for a dental condition, claimed as loose teeth, is denied. Entitlement to service connection for a lumbar spine disorder, claimed as residuals of lumbar discectomy, is denied. Entitlement to service connection for a hernia condition, claimed as residuals of an inguinal hernia, is denied. Entitlement to service connection for bilateral carpal tunnel syndrome, claimed as two surgeries on the arms, is denied. FINDINGS OF FACT 1. The Veteran does not have a current disability associated with his claimed dental condition. 2. The preponderance of the evidence is against finding that the Veteran’s lumbar spine disorder, claimed as residuals of lumbar discectomy, began during active service, or is otherwise related to an in-service injury, event, or disease. 3. The preponderance of the evidence is against finding that the Veteran’s hernia condition, claimed as residuals of an inguinal hernia, began during active service, or is otherwise related to an in-service injury, event, or disease. 4. The preponderance of the evidence is against finding that the Veteran’s bilateral carpal tunnel syndrome, claimed as two surgeries on the arms, began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a dental condition, claimed as loose teeth, are not met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.310 (2017). 2. The criteria for service connection for a lumbar spine disorder, claimed as residuals of lumbar discectomy, are not met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). 3. The criteria for service connection for a hernia condition, claimed as residuals of an inguinal hernia, are not met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). 4. The criteria for service connection for bilateral carpal tunnel syndrome, claimed as two surgeries on the arms, are not met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from September 1981 to September 1984. This case is on appeal before the Board of Veterans’ Appeals (Board) from a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. In his August 2016 appeal to the Board, the Veteran sought service connection for a traumatic brain injury (TBI) and a seizure condition. However, the Board notes that the Veteran was awarded service connection for his TBI in a June 2016 rating decision; he was also awarded service connection for his seizure condition in a September 2017 rating decision. As such, these issues are now moot and will not be discussed further. A review of the record reflects additional medical evidence was added subsequent to the June 2016 Statement of the Case (SOC). Although this evidence was submitted without wavier of RO consideration, the evidence provided is either duplicative or essentially cumulative of the information previously considered. As such, no further action is required. Neither the Veteran nor his representative has raised any specific issues with the duty to notify or the duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran seeks service connection for a dental condition, a lumbar spine disorder, a hernia condition, and bilateral carpal tunnel syndrome. Service connection will generally be established when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection on a direct basis, there must be (1) evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet. App. 341, 346 (1999). Service connection will generally be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be granted for aggravation of a disease or injury by a service-connected disability. Id. In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The preponderance of the evidence is against finding that the Veteran’s dental condition, lumbar spine disorder, hernia condition, and bilateral carpal tunnel syndrome are related to service. As such, all four appeals are denied. I. Dental Condition The Veteran seeks service connection for a dental condition, claimed as loose teeth. He asserts that his teeth became loose and fell out due to his seizure condition. See September 2016 appellate brief. In July 2013, the Veteran reported problems with his teeth, saying that they were becoming loose due to grinding from his seizures. The Veteran had all of his teeth pulled in March 2015. The Veteran does not state that he sustained trauma to the jaw, teeth, or mouth during service. His service treatment records contain no references to dental problems. Indeed, a September 1981 dental record shows that there was no evidence of decay in any of the Veteran’s teeth. Additionally, the Veteran’s July 1984 separation examination does not mention any ongoing dental problems. After careful consideration of the claims file, the Board concludes that service connection is not warranted for the Veteran’s dental condition, claimed as loose teeth. Under VA regulations, compensation is only available for certain types of dental and oral conditions, which are rated under 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. Diagnostic Code 9913 is applied to dental service connection claims involving the teeth. However, compensation is only paid for loss of teeth due to loss of substance of the body of maxilla or mandible without loss of continuity (as a result of trauma) or disease such as osteomyelitis, and not the loss of alveolar process (the ridge on the surfaces of the upper (maxilla) and lower (mandible) jaws containing the tooth sockets) as a result of periodontal disease, since such loss is not considered disabling. See 38 C.F.R. § 4.150, Diagnostic Code 9913, Note. Thus, to warrant compensation for a dental disability, the evidence must show that a trauma has caused a loss of substance of the body of the maxilla or mandible resulting in a loss of teeth, or that disease (such as osteomyelitis, but not periodontal disease) has caused a loss of substance of the body of the maxilla or mandible resulting in a loss of teeth. Here, there is no evidence that the Veteran’s dental condition results in a loss of substance of the body of the maxilla or mandible. Indeed, the Veteran himself has characterized this disability solely as “loose teeth.” As such, given that this is not an impairment for which the VA may award compensation, service connection is not established, including as secondary to his seizure do. Because the preponderance of the evidence shows that the Veteran does not have a disability associated with his claimed dental condition, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. 5107; 38 C.F.R. § 3.102. II. Lumbar Spine Disorder The Veteran seeks service connection for a lumbar spine disorder, claimed as residuals of a lumbar discectomy. See September 2016 appellate brief. The Veteran’s service treatment records contain one reference to lower back spasms in July 1984. There is another reference to back pain during service, but the date is illegible. However, the Veteran’s July 1984 separation examination does not mention any ongoing lower back problems. The first indication of a lumbar spine disorder does not appear until 1990, when the Veteran underwent his first lumbar discectomy. The Veteran had a second lumbar spine surgery in 1994. A CT scan of the Veteran’s lumbar spine from September 1997 revealed some spondylotic changes in the facet joints at L4-L5 with a herniated lumbar disc centrally and to the right. In February 2007, the Veteran sought treatment for lower back pain after an accident at work. In May 2007, an MRI of the Veteran’s lumbar spine found L5-S1 stenosis without nerve involvement, an L1-L2 left-sided osteophyte without foraminal stenosis, and an L2-L3 central disc protrusion. A June 2011 MRI of the Veteran’s lumbar spine showed a moderate central L4-L5 disc protrusion, a small left central L1-L2 disc protrusion, and a small central disc protrusion at T12-L1. A treatment record from November 2013 lists the Veteran’s active medical issues, including vertebral disc injuries and a history of back surgeries. However, the Veteran stated that many of his difficulties stemmed from his work in construction and as a plumber, and also working on boilers and heating units. In September 2015, an MRI of the Veteran’s lumbar spine revealed extensive degenerative changes. The Veteran was afforded a VA examination in June 2016. The examiner reviewed the claims file, including the Veteran’s service and VA treatment records. Ultimately, the examiner opined that the Veteran’s lumbar spine disorder is less likely than not related to service. The examination reports states that this is because degenerative disc disease, which necessitated Veteran’s discectomy, is generally medically accepted to be caused by mechanical stresses and strains with cumulative damage to the discs and other spinal structures over time. In most individuals, it is part of the natural aging process. The Veteran’s available service treatment records contain references to spasms and lower back pain, but an isolated episode of back pain or spasms would not be sufficient to cause degenerative disc disease requiring surgery years later. As best as the service treatment records can be read, there does not appear to have been any issues with chronic or recurrent back pain in service or a significant back injury likely to affect the discs. The examiner also pointed out that the Veteran worked a series of physically demanding jobs after service, stating that his lumbar spine disorder is more likely related to his post-service employment. After careful consideration of the claims file, the Board concludes that the preponderance of the evidence is against the finding that the Veteran’s lumbar spine disorder is related to service. The Board notes that the opinion provided by the June 2016 VA examiner is the only medical opinion on record addressing the origin of the Veteran’s lumbar spine disorder. The VA examiner had the benefit of examining the claims file and provided a clear basis for his opinion. The VA examiner also had the opportunity to review the Veteran’s VA medical records associated with the claims file, and found no relationship between his current lumbar spine disorder and active service. The Board thus affords this opinion the greatest probative weight, and adopts the VA examiners’ conclusion that the Veteran’s lumbar spine disorder is not related to active service. The Board has considered the statements of the Veteran, which attribute his lumbar spine disorder to events he experienced in service. The Board finds that the opinion provided by the June 2016 VA examiner is more probative than the Veteran’s lay assertions. The Veteran’s opinion does not account for the evidence cited by the examiner as showing that his current disability is less likely than not related to service. Moreover, the VA examiner has expertise, education, and training that the Veteran is not shown to have, and the opinion is supported by a detailed explanation. As such, that opinion warrants more weight. Further, and in the alternative, the Veteran’s opinion that his current lumbar spine disorder is related to service is not competent evidence, and thus lacks probative value. In this regard, the Board must determine on a case by case basis whether evidence is competent on the issue in question. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that it was error to reject “categorically” lay statements on the issue of medical nexus, and similarly to make a categorical finding that a medical opinion was required); see also Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that the Board erred in categorically rejecting lay evidence without assessing its competence). In this case, the Board finds that whether pathology or disability of the lumbar spine that manifests years after service separation may be related to service is a determination that requires medical expertise, as a cause-and-effect relationship cannot be observed through the senses alone given the time lapse. Accordingly, as the Veteran is a lay person in the field of medicine, and not shown to possess relevant expertise, his lay opinion on this issue does not constitute competent evidence, and thus is not probative. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469, 470-71 (1994). Thus, the VA medical opinion carries more weight. Accordingly, a nexus between the Veteran’s current disability and his period of service is not established. Consequently, the criteria for service connection are not satisfied. See 38 C.F.R. § 3.303(a); Holton, 557 F.3d at 1366. To the extent the Veteran’s lumbar spine pathology includes arthritis, the evidence does not show chronicity in service or a continuity of symptoms after separation. It also does not show that arthritis manifested to a compensable degree within one year of service separation. Thus, service connection is not warranted based on a chronicity in service or a continuity of symptoms after service, and is also not warranted on a presumptive basis. See 38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a) (2017). Since the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. 49, 58 (1991). III. Hernia Condition The Veteran seeks service connection for a hernia condition, claimed as residuals of an inguinal hernia. See September 2016 appellate brief. The Veteran’s service treatment records contain reflect no complaints of a hernia condition or related treatment. The Veteran did not report a history of hernia at separation, as shown in the July 1984 report of medical history, and his genitourinary system was clinically evaluated as normal in the July 1984 separation examination report, which did not otherwise identify a hernia condition. The first indication of a hernia condition does not appear until 2006, when the Veteran underwent a right inguinal hernia repair surgery. In March 2013, the Veteran reported pain and bulging in the area affected by the previous hernia. However, ultrasounds of the Veteran’s abdomen from June and August 2013 found no evidence of an inguinal hernia. A treatment record from September 2013 shows that the Veteran complained of right groin pain, which he described as “stabbing.” However, an X-ray revealed no issues related to the Veteran’s previous hernia. The attending physician could not identify a causative agent, but believed the Veteran’s pain could be related to his lumbar spine condition. In November 2013, the Veteran sought treatment after an injury to his side, which he claimed “popped” his hernia back into place. The Veteran indicated that the area was still tender, though no longer affected by pain. A CT of the Veteran’s abdomen showed no evidence of a hernia. There was, however, a small amount of fat descending into the proximal left inguinal canal, which the reading physician described as uncomplicated. During an appointment in June 2014, the Veteran did not report any current issues related to his hernia condition. After careful consideration of the claims file, the Board concludes that the preponderance of the evidence is against finding that a hernia condition manifested in service, or that there is a nexus between the Veteran’s current hernia and his period of service. Not only do the service treatment records indicate that a hernia condition was not diagnosed or complained of by the Veteran, but a history of a hernia was not noted at separation and a medical examination was normal. This contemporaneous evidence is probative and outweighs the Veteran’s recent statements in support of the claim. Further, the normal examination at separation and the many years that have elapsed since the Veteran’s service and the onset of his current hernia condition weighs against a link to disease or injury incurred or aggravated in active service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a proper consideration for the trier of fact is the amount of time that has elapsed since military service, and that evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the Veteran’s health and medical treatment during and after military service, as evidence of whether a condition was incurred in service). The Veteran’s unsupported assertions that his hernia condition manifested during service are not alone sufficient to establish the fact. For the reasons discussed above, the preponderance of the evidence weighs against a relationship between a current hernia condition and the Veteran’s service. Accordingly, the criteria for establishing service connection are not satisfied. Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(a). As there is no indication that the Veteran’s hernia may be related to a disease, injury, or event in service, for the reasons discussed above, a VA examination or opinion is not warranted on this issue. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Because the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. 5107; 38 C.F.R. § 3.102. IV. Bilateral Carpal Tunnel Syndrome The Veteran seeks service connection for bilateral carpal tunnel syndrome, claimed as two surgeries on the arms. See September 2016 appellate brief. The Veteran’s service treatment records do not contain any evidence of carpal tunnel syndrome or related treatment. The first indication of bilateral carpal tunnel syndrome does not appear until October 2009, when the Veteran reported severe pain and numbness in both hands. Nerve conduction testing revealed bilateral carpal tunnel syndrome, described as severe on the right and moderate on the left. The Veteran underwent bilateral carpal tunnel release surgeries the following year. In June 2011, the Veteran sought treatment for a lump on his right hand. He also reported loss of sensation in his left hand, stating that many of his symptoms were the same as before his carpal tunnel surgeries. A treatment record from November 2013 lists the Veteran’s active medical issues, including bilateral carpal tunnel syndrome. However, the Veteran stated that many of his difficulties stemmed from his work in construction and as a plumber, and also working on boilers and heating units. After careful consideration of the claims file, the Board concludes that the preponderance of the evidence is against a nexus between the Veteran’s bilateral carpal tunnel syndrome and active service given the fact that it did not manifest until years after service separation. Accordingly, the criteria for service connection are not satisfied. Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(a). As there is no indication that the Veteran’s carpal tunnel syndrome may be related to a disease, injury, or event in service, a VA examination or opinion is not warranted on this issue. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). (Continued on the next page)   Because the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. 5107; 38 C.F.R. § 3.102. J. Rutkin Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD MJS, Associate Counsel