Citation Nr: 18153630 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 15-06 388 DATE: November 29, 2018 ORDER Request to reopen the finally disallowed claim of service connection for loss of front teeth and gum pain is denied. Entitlement to service connection for post operative left shoulder rotator cuff tear is denied. Entitlement to service connection for left thumb strain (non-dominant) is denied. Entitlement to service connection for a stomach condition, claimed as acid reflux, is denied. REMANDED Issue of entitlement to service connection for Lyme disease is remanded. Issue of entitlement to service connection for cataract and macular degeneration, claimed as vision problems, is remanded. The request to reopen the finally disallowed claim of service connection for a back condition, including discogenic disease of the lumbar spine, is remanded. Issue of entitlement to service connection for a right leg condition associated with a back condition, including discogenic disease of the lumbar spine, is remanded. FINDINGS OF FACT 1. The April 2002 rating decision denied the Veteran’s claim of service connection for loss of front teeth and gum pain, which was not appealed and then became final. 2. Evidence received since the April 2002 rating decision is either cumulative, redundant, or does not relate to an unestablished fact necessary to substantiate the claims of service connection for loss of front teeth and gum pain. 3. The preponderance of the evidence is against finding the Veteran’s post operative left shoulder rotator cuff tear was incurred in or otherwise related to service. 4. The preponderance of the evidence is against finding the Veteran’s left thumb strain (non-dominant) was incurred in or otherwise related to service. 5. The preponderance of the evidence is against finding that the Veteran’s stomach condition, claimed as acid reflux, was incurred in or otherwise related to service. CONCLUSIONS OF LAW 1. The April 2002 rating decision that denied reopening the Veteran’s claim of service connection for loss of front teeth and gum pain is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018). 2. Evidence received since the April 2002 rating decision is not new and material, and, thus, the Veteran’s claims for service connection for loss of front teeth and gum pain is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. The criteria for service connection for post operative left shoulder rotator cuff tear are not met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 4. The criteria for service connection for left thumb strain (non-dominant) are not met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). 5. The criteria for service connection for a stomach condition, claimed as acid reflux, are not met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1970 to October 1972. This appeal to the Board of Veterans’ Appeals (Board) arose from a May 2013 rating decision issued by the Department of Veterans Affairs (VA). See June 2013 Notice of Disagreement (NOD); January 2015 Statement of the Case (SOC); February 2015 Substantive Appeal (VA Form 9). The Veteran requested a hearing before the Board, but later withdrew his request and asked that the appeal proceed. See June 2016 VA Form 646; February 2018 VA Form 21-4138. New and Material Evidence The Veteran requests reopening of his claim for loss of front teeth and gum pain due to a 1972 oral injury while stationed at Okinawa, Japan. See December 2010 VA Form 21-526b. The Veteran related that his military records show that the person who assaulted him caused an oral injury and was Court Martialed for the assault. See February 2011 VA Form 21-4138. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision-makers. 38 C.F.R. § 3.156(a). Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. The United States Court of Appeals for Veterans Claims (Court) has emphasized that the final sentence of 38 C.F.R. § 3.156(a), especially the phrase “raise[s] a reasonable possibility of substantiating the claim,” does not create a third element or separate determination in the reopening process, but is a component of the question of what is new and material evidence. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (noting that 38 U.S.C. § 5108 requires only new and material evidence to reopen). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App 273, 283 (1996). For the limited purpose of evaluating whether evidence is new and material, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 511 (1992). In this case, the Veteran needs new and material evidence relating to whether he has a dental or oral condition that is available for compensation. The April 2002 rating decision denied the Veteran’s claim because it found service dental records did not show his asserted condition is a disability under the law for compensation purposes. See April 2002 rating decision. Under current VA regulations, compensation is only available for certain types of dental and oral conditions listed at 38 C.F.R. § 4.150. Compensation is available for loss of teeth only if it is due to loss of substance of body of maxilla or mandible. See Simmington v. West, 11 Vet. App. 41 (1998). In addition, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not compensable disabilities. See 38 C.F.R. § 3.381(b). No competent evidence showing that the Veteran has a dental or oral condition listed at 38 C.F.R. § 4.150 has been received since the April 2002 rating decision. The Board notes that even if the Veteran’s statement about an oral injury from an in service assault is presumed credible, this would not address whether the Veteran has a dental or oral condition subject to compensation. The Board, therefore, finds that no new and material evidence has been received to warrant reopening the finally disallowed claim of service connection for loss of teeth and gum pain. Service Connection Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection is established when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). 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). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for post operative left shoulder rotator cuff tear. The Veteran asserts that his left shoulder disability occurred while on active duty in July 1971. See February 2012 VA Form 21-526b. The Board finds that the Veteran has a current left shoulder disability that is currently diagnosed as a left shoulder rotator cuff tear with open repair. See May 2013 VA examination. The Board also finds the Veteran’s statement about a in service left shoulder injury credible and consistent with service treatment records showing x-rays were performed on his left shoulder. See July 1971 Service treatment record. The question left for the Board is whether there is a medical link between the Veteran’s current left shoulder disability and service. The Board finds that the preponderance of the evidence is against finding the Veteran’s post-operative left shoulder rotator cuff tear was incurred in or otherwise related to service. While the Veteran is competent to report having experienced symptoms of left shoulder pain, the causation of his left shoulder disability, currently diagnosed as post-operative left shoulder rotator cuff tear, falls outside of the realm of knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, supra. Although the Veteran is competent to describe the symptoms and onset, the statements regarding the condition’s etiology are of limited probative value because this determination involves a complex medical question. Id. In addition, the Veteran’s statement that his left shoulder condition was incurred in or otherwise related to service is inconsistent with his prior statement that he developed acute pain in the left shoulder while doing strenuous lifting in 1991, which was then diagnosed as a rotator cuff tear. See January 2001 Compensation and Pension Examination. Instead, the Board finds the May 2013 VA examiner’s opinion most probative as to whether there is a medical link between the Veteran’s current left shoulder disability and his service. The VA examiner opined that the Veteran’s left shoulder condition was less likely than not incurred in or caused by an in service injury, event, or illness. See May 2013 VA examination. The VA examiner’s rationale is that the July 1971 treatment for his left shoulder was only a very brief note stating that a left shoulder x-ray was done and that it was normal. Id. The VA examiner added that the Veteran performed work in a physical capacity after separation, up until his 1998 work injury that resulted in a surgery for his left shoulder. Id. The VA examiner is a medical professional who is qualified to evaluate the Veteran’s left shoulder disability, the opinion is clear and provides detailed rationale, and his findings are consistent with the service treatment evidence. See July 1971 Service treatment record. The medical evidence also shows no complaint of left shoulder pain, or treatment other than the normal 1971 x-rays, during service or within a year after the Veteran’s separation. The Board, therefore, finds that the preponderance of the evidence is against finding the Veteran’s post-operative left shoulder rotator cuff tear was incurred in or otherwise related to service. 2. Entitlement to service connection for left thumb strain (non-dominant). The Veteran asserts that his left thumb strain occurred while on active duty in July 1971 and that he has had pain and swelling since. See February 2012 VA Form 21-526b; February 2015 Form 9. Here, the question for the Board is whether the Veteran has a current disability of left thumb strain. The Board finds that the Veteran does not have a current left thumb strain disability recent to the filing of his claim or one at any time during the pendency of his claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The May 2013 VA examination report for the Veteran’s hand and finger conditions indicates that the Veteran has current complaints of left thumb swelling from time to time, but that the only pertinent diagnosis of a hand or finger condition is a January 1971 diagnosis for left thumb strain. See May 2013 VA examination. The medical evidence recent to the filing of the Veteran’s claim, and during the pendency of the claim, shows no other diagnosis, complaint, or treatment for his left thumb. The Board also considered the Veteran’s complaint of left thumb pain and swelling, but the overall evidence reflects that such complaints of symptoms do not amount to a disability that functionally impairs the Veteran. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the symptoms related to a specific body system or joint involved must functionally impair the Veteran to constitute a disability). The medical treatment records show no complaints of left thumb pain since the Veteran’s separation from service. The May 2013 VA examiner found no functional loss in the Veteran’s left hand, and that the Veteran did not report flare ups which would impact his hand function. See May 2013 VA examination. The lack of treatment or complaints, and the VA examiner’s findings, are highly probative evidence against the Veteran’s claim of a current left thumb disability. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See, e.g., Degmetich v. Brown, 104 F.3d 1328 (1997). Congress has specifically limited entitlement to service connection for a disease or injury where such instances have resulted in a disability. 38 U.S.C. §§ 110, 1131. Hence, where the evidence does not support a finding of a current disability of left thumb strain upon which to predicate the grant of service connection, there can be no valid claim for this benefit. See Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Because the first element of service connection, i.e., a current disability, has not been met, service connection for left thumb strain must be denied. 3. Entitlement to service connection for a stomach condition, claimed as acid reflux. The Veteran asserts that his acid reflux began in service. See February 2015 Form 9. The Board finds that the Veteran has a current disability of a stomach condition. The Veteran was diagnosed with delayed gastric emptying, gastritis, and chronic reflux esophagitis after an upper endoscopy, and is taking medication for gastroesophageal reflux disease (GERD). See May 2007 Private treatment record; February 2011 VA treatment record. However, the preponderance of the evidence is against finding that the Veteran’s stomach condition was incurred in or otherwise related to service. The Veteran does not assert that a specific in service injury or event caused his current stomach condition, only that his acid reflux began in service. The service treatment records show the Veteran was seen for stomach pains, but it was diagnosed as viral enteritis and resolved with treatment. See December 1970 Service treatment records. The Veteran was seen for other ailments, but there were no complaints of gastric issues. See December 1970 to September 1972 Service treatment records. The earliest medical evidence related to his acid reflux is the May 2007 upper endoscopy, more than 30 years later after separation and performed due to weight loss, and not for acid reflux symptoms. See May 2007 Private treatment record. Based on the lack of complaints and treatment for acid reflux during service, and for more than 30 years after Veteran’s separation, the Board finds that the preponderance of the evidence is against finding the Veteran’s stomach condition, claimed as acid reflux, was incurred in or otherwise related to service. REASONS FOR REMAND 1. Issue of entitlement to service connection for Lyme disease. The Board cannot make a fully-informed decision on the issue of service connection for Lyme disease because no VA examiner has opined whether the Veteran’s rash during service is related to Lyme disease. The Veteran asserts that he contracted Lyme disease when he was on active duty in North Carolina. See October 2011 VA Form 21-526b. The Veteran also asserts that his rash while stationed in Okinawa, Japan, was a symptom of his Lyme disease. See June 2013 NOD. The Board finds that the Veteran has a current disability of Lyme disease and that service treatment records show he had treatment for a rash while in service. See June 1972 Service treatment record; June 2011 VA treatment record. The Board finds that a VA examination is necessary to determine whether there is a medical link between the Veteran’s current Lyme disease and his in service rash. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 2. Issue of entitlement to service connection for cataract and macular degeneration, claimed as vision problems. The Board cannot make a fully-informed decision on the issue of service connection for cataract and macular degeneration because no VA examiner has opined whether there is a medical link between the Veteran’s vision loss during service and his current disabilities of cataract and macular degeneration. The evidence shows a current disability of cataracts and macular degeneration, and service treatment records show 20/50 vision during service. See November 1970 Service treatment record; September 2011 VA examination. The Board finds that a VA examination is necessary to determine whether there is a medical link between the Veteran’s current cataracts and macular degeneration and his vision loss during service. See McLendon, 20 Vet. App. at 81. 3. Request to reopen the finally disallowed claim of service connection for a back condition, including discogenic disease of the lumbar spine. The Veteran requested reopening of his claim of service connection for a back condition, to include discogenic disease of the lumbar spine. See December 2010 VA Form 21-526b. The Veteran related that a Fresno VA Medical Center physician concluded that his back condition is linked to his in service back injury. See February 2011 VA Form 21-4138. The Veteran related again in October 2011 and February 2012 that there are relevant records about his back claim from the Fresno VA Medical Center, from 2000 to present. See October 2011 VA Form 21-526b; February 2012 Veteran’s Claims Assistance Act of 2000 (VCAA) Notice Response. However, it is unclear from the claims file if the RO attempted to obtain these medical records from Fresno VA Medical Center. The Board finds that the RO should attempt to obtain the Veteran’s VA treatment records that are not already part of the claims file for the period from 2000 to the present. 4. Issue of entitlement to service connection for a right leg condition associated with a back condition, including discogenic disease of the lumbar spine. Finally, because a decision on the remanded request to reopen the finally disallowed claim of service connection for a back condition, including discogenic disease of the lumbar spine, could significantly impact a decision on the issue of service connnection for a right leg condition associated with a back condition, the issues are inextricably intertwined. A remand of the claim of service connnection for a right leg condition associated a back condition, including discogenic disease of the lumbar spine, is required. The matters are REMANDED for the following action: 1. Obtain complete clinical records of all pertinent evaluations and treatment (records of which are not already associated with the claims file) from the Fresno VA Medical Center, dated from 2000 to present, particularly for evidence of the Veteran’s back condition. If any records sought are unavailable, the reason for their unavailability must be noted in the claims file and the Veteran and his representative must be notified. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his Lyme disease. The examiner should respond to the following: (a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s Lyme disease began in (or is otherwise related to) the Veteran’s military service? The examiner should specifically consider the June 1972 service treatment records showing treatment for a rash. The examiner should also consider and discuss the Veteran’s lay testimony and assertions regarding any pertinent complaints and symptoms, including that he believes he contracted Lyme disease while in North Carolina and that he believes his rash during service is related to Lyme disease. A detailed explanation (rationale) is requested, including citing to supporting clinical data (and/or medical literature), as appropriate. (b) If the June 1972 treatment for a rash is deemed unrelated to Lyme disease, the examiner should, if possible, identify the cause considered more likely and explain why that is so. 3. Obtain an addendum opinion from an appropriate medical professional to determine the nature and cause of the Veteran’s cataract and macular degeneration. If the medical professional determines that it is necessary, schedule the Veteran for a VA examination regarding the etiology of his cataract and macular degeneration. The medical professional should respond to the following: (a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s cataract and macular degeneration began in (or is otherwise related to) the Veteran’s military service? The examiner should consider service treatment records showing 20/50 unaided vision and complaints of blurred vision in November 1970 and August 1972. The examiner also should consider and discuss the Veteran’s lay testimony and assertions regarding any pertinent complaints and symptoms. A detailed explanation (rationale) is requested, including citing to supporting clinical data (and/or medical literature), as appropriate. (b) If cataracts and macular degeneration is deemed to be unrelated to service, the examiner should, if possible, identify the cause considered more likely and explain why that is so. (Continued on next page) 4. After the above development has been completed, review the record and ensure that all development sought in this remand has been completed. Arrange for any further development indicated by the results of the development requested above (e.g., a VA examination for a medical nexus opinion for a back condition, including discogenic disease of the lumbar spine, or a VA examination for a nexus opinion regarding a right leg condition on a secondary basis, if deemed warranted by the AOJ), and re-adjudicate the claims. If the benefits sought are not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. The case should be returned to the Board, if in order, for further appellate review. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Lin, Associate Counsel