Citation Nr: 18154808 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 15-22 824 DATE: November 30, 2018 REMANDED Entitlement to service connection for a left foot disorder is remanded. Entitlement to service connection for a right foot disorder is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a right leg disorder is remanded. Entitlement to service connection for a tooth disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1992 to April 1994. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. Initially, the Board notes that the Agency of Original Jurisdiction (AOJ) last adjudicated the claim in an April 2015 statement of the case (SOC). Since that time, additional VA treatment records have been added to the file. A supplemental statement of the case (SSOC) has not been issued. Therefore, the claim must be remanded to the AOJ for the issuance of an SSOC that considers the additional evidence. See 38 C.F.R. § 19.31 (b)(1)(requiring issuance of an SSOC if additional evidence is received). Right Leg Disorder In his June 2012 claim for compensation, the Veteran indicated that he had a right leg disorder, specifically manifested by tingling in his right leg. In a March 1994 report of medical history, completed at the time of his separation from service, the Veteran reported that he had cramps in his legs. In a February 2011 VA treatment record, the Veteran reported that he felt numbness in his right leg. Given the Veteran’s service records and his more recent reports of right leg numbness, an examination and medical opinion should be obtained to address the nature and etiology of his right leg disorder. The Board also notes that, in a May 2018 statement, the Veteran indicated that he experiences tingling in both of his legs and his hands. He also indicated that he should be entitled to service connection for disorders such as chronic fatigue syndrome and irritable bowel syndrome due to his service as a Gulf War Veteran. The Veteran is advised that a claim for benefits must be submitted on the application form prescribed by the Secretary. 38 C.F.R. §§ 3.1(p), 3.155, 3.160. Hypertension, Sleep Apnea, Right Foot Disorder, and Left Foot Disorder The Veteran’s service treatment records do not document any complaints, treatment, or diagnoses of hypertension, sleep apnea, or a foot disorder. VA treatment records do show that the Veteran has current diagnoses of sleep apnea and hypertension. In May 2018, the Veteran submitted a statement indicating that his symptoms of sleep apnea started in service due to disturbances that he experienced in his sleep patterns. He also reported that his hypertension was caused or aggravated by his sleep apnea. In the May 2018 statement, the Veteran further reported that he was diagnosed with plantar fasciitis, which he contends developed in service as a result of exposure to different terrains. He has also asserted that his foot disorders may have resulted from wearing steel toe combat boots in service. September 2011 records noted that the Veteran had pain bilaterally in his Achilles tendon and heel. The VA treatment records attributed the pain to the Veteran’s running and jogging activity. Given the Veteran’s assertions, a remand is necessary to obtain examinations and medical opinions addressing the nature and etiology of the Veteran’s hypertension, sleep apnea, right foot disorder, and left foot disorder. Tooth The Veteran has contended that his tooth was knocked loose and chipped during service and that this aggravated his nerves and caused him to feel certain sensations. August 1992 service treatment records show that the Veteran had a tooth removed in service; however, he denied having any tooth or gum trouble when he separated from service. May 2015 VA treatment records noted that the Veteran had dental pain and minor mouth bleeding, which may have been due to a recent root canal he had. Service connection may generally be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Dental disorders are an exception to this general rule and are treated differently than other medical disorders in the VA benefits system. The regulations governing dental claims make a fundamental distinction between replaceable missing teeth and teeth lost as a result of loss of substance of body of maxilla or mandible due to trauma or disease such as osteomyelitis, and not loss of the alveolar process as a result of periodontal disease. See 38 C.F.R. §§ 3.381; 4.150; Simington v. West, 11 Vet. App. 41, 44 (1998). Absent a demonstration of dental trauma, service connection may be considered solely for the purpose of determining entitlement to dental examinations or outpatient dental treatment. See Woodson v. Brown, 8 Vet. App. 352, 354 (1995). Under 38 C.F.R. § 3.381, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not compensable disabilities but will be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment as provided in 38 C.F.R. § 17.161. 38 U.S.C. § 1712; 38 C.F.R. § 3.381 (a) (2011) (as amended at 38 C.F.R. § 3.381 (b) with no substantive changes for the purposes of this claim). However, acute periodontal disease will not be considered service-connected for treatment purposes. 38 C.F.R. § 3.381(f)(2). VA's General Counsel has held that dental treatment, even extractions during service, does not constitute dental trauma. See VAOPGCPREC 5-97; see also Nielson v. Shinseki, 607 F.3d 802, 808 (Fed. Cir. 2010) (holding that "service trauma" means an injury or wound produced by an external force during the service member's performance of military duties and that the intended result of medical treatment is excluded absent military negligence or malpractice). Based upon the Veteran’s reports of losing his tooth in service, an examination and opinion should be obtained which addresses whether he has any current residuals from dental trauma. If the Veteran is not entitled to service connection for the purposes of compensation, he may still be eligible for service connection for treatment purposes. The regulation relating to service connection of dental conditions for treatment purposes was amended, effective February 29, 2012, in order to clarify existing regulatory provisions and to reflect the respective responsibilities of the Veterans Health Administration (VHA) and Veterans Benefits Administration (VBA) in determinations concerning eligibility for dental treatment. The amended version of 38 C.F.R. § 3.381 clarifies that VBA will adjudicate a claim for service connection of a dental condition for treatment purposes after VHA determines that a veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161 and requests that VBA make a determination on relevant questions. 38 C.F.R. § 3.381(a). Thus, a remand is also necessary to ensure that this action is completed. The matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for bilateral hearing loss, a right leg disorder, a right foot disorder, a left foot disorder, hypertension, sleep apnea, and a tooth disorder. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding VA medical records. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any right leg disorder, to include numbness and tingling, that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and statements. It should also be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current right leg disorders and state whether it is at least as likely as not that any right leg disorder manifested in or is otherwise causally or etiologically related to the Veteran’s military service, to include any symptomatology therein. In rendering this opinion, the examiner should address the March 1994 report of medical history wherein the Veteran reported he experienced leg cramps. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,]”38 C.F.R. § 4.1, copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any sleep apnea that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and statements. It should also be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should state whether it is at least as likely as not that sleep apnea manifested in or is otherwise causally or etiologically related to the Veteran’s military service, to include any symptomatology therein. In rendering this opinion, the examiner should address the Veteran’s May 2018 statement wherein he indicated that his sleep apnea was caused by sleep disturbances he experienced in service. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,]”38 C.F.R. § 4.1, copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any right and/or left foot disorders that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and statements. It should also be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current right and left foot disorders and state whether it is at least as likely as not that any right and/or left foot disorders manifested in or are otherwise causally or etiologically related to the Veteran’s military service, to include any symptomatology therein. In rendering this opinion, the examiner should address the Veteran’s May 2018 statement wherein he asserted that he developed plantar fasciitis due to exposure to uneven terrain in service, and as a result of having to wear combat boots. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,]”38 C.F.R. § 4.1, copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any hypertension that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and statements. It should also be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should state whether it is at least as likely as not that hypertension manifested in or is otherwise causally or etiologically related to the Veteran’s military service, to include any symptomatology therein. The Veteran has contended that his hypertension developed as a result of his sleep apnea. The examiner should opine as to whether it is at least as likely as not that hypertension was either caused or aggravated by the Veteran’s sleep apnea. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,]”38 C.F.R. § 4.1, copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 6. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any current dental disorders that may be present. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should: (a) Identify all current dental disorders; (b) For each dental disorder, he or she should state whether it is at least as likely as not that the disorder is related to any in-service trauma. For VA compensation purposes, dental treatment, even extractions during service, does not constitute dental trauma. See VAOPGCPREC 5-97; see also Nielson v. Shinseki, 607 F.3d 802, 808 (Fed. Cir. 2010) (holding that "service trauma" means an injury or wound produced by an external force during the service member's performance of military duties and that the intended result of medical treatment is excluded absent military negligence or malpractice). (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 7. The AOJ should refer the Veteran’s claim for service connection for a dental disorder for dental treatment purposes to the appropriate VAMC to determine if the Veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161. If the VAMC determines that the Veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161 and requests a determination from VBA, the claim should be adjudicated. 8. The AOJ should then review the VA examination reports to ensure they are in compliance with this remand. If the reports are deficient in any manner, the AOJ should implement corrective procedures. 9. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Saikh, Associate Counsel