Citation Nr: 18155595 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-48 903 DATE: December 4, 2018 ORDER Service connection for purposes of receiving compensation and/or VA outpatient treatment for tooth loss is denied. Service connection for a bilateral hearing loss disability is denied. Service connection for right hand disability is granted. Service connection for residuals of right foot injury is denied. REMANDED Service connection for erectile dysfunction is remanded. Service connection for arthritis is remanded. FINDINGS OF FACT 1. The Veteran’s in-service dental treatment was due to causes other than a combat wound or trauma; he did not apply for dental benefits for tooth loss within 180 days of service discharge. 2. The Veteran does not have a hearing loss disability of either ear. 3. Right hand disability is due to the Veteran’s in-service history of crush injury in 2005. 4. Other than plantar fasciitis, the Veteran does not have current residuals of right foot injury. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for tooth loss, for purposes of receiving compensation and/or VA outpatient dental treatment, is without legal merit. 38 U.S.C. §§ 1110, 1712 (2012); 38 C.F.R. §§ 3.381, 17.161 (2018). 2. A bilateral hearing loss disability was not incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.385 (2018). 3. Right hand disability was incurred in wartime service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303 (2018). 4. Residuals of right foot injury other than plantar fasciitis were not incurred in or aggravated by service. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from May 2001 to June 2006, and from March 2007 to February 2008. In a May 2013 rating decision, the RO denied service connection for right hand disability; for residuals of right foot injury; for erectile dysfunction; and for unspecified dental trauma. Additional service treatment records that are relevant to the claims for service connection have been added to the record since that time. Hence, the claims fall within the exception created by 38 C.F.R. § 3.156(c)(1), which entitles the Veteran to reconsideration without requiring new and material evidence; and the effective date of any award shall be the date entitlement arose, or the date of receipt of the previously denied claims. See 38 C.F.R. § 3.156(c)(3). The Board notes that the RO did not reopen any of these previously denied claims; however, given the basis of the denials below, which are essentially done as a matter of law, the Veteran is not prejudiced by the lack of a merits determination at the RO level. Service Connection Service connection is awarded for disability that is the result of a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Service connection requires competent evidence showing: (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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability that are subject to lay observation. 38 U.S.C. § 1153(a) (2012); 38 C.F.R. § 3.303(a) (2017); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Residuals of Dental Trauma VA will consider certain dental conditions service-connected for treatment purposes if they are shown in service after a period of 180 days. See 38 C.F.R. § 3.381 (2018). Treatable missing teeth, dental or alveolar abscesses, and periodontal disease will be considered service-connected solely for purposes of establishing eligibility for outpatient dental treatment, as provided in 38 C.F.R. § 17.161. To be eligible for outpatient dental treatment, at VA expense, a Veteran must satisfy one of the eligibility categories listed in 38 U.S.C. § 1712 and 38 C.F.R. § 17.161. To establish entitlement to service connection for a tooth, the Veteran must have sustained a combat wound or other in-service trauma. See 38 U.S.C. § 1712(c) (2012); 38 C.F.R. § 3.381(b). The significance of finding a dental condition is due to in-service trauma is that a Veteran will be eligible for VA outpatient dental treatment, without being subject to the usual restrictions of a timely application and one-time treatment. 38 C.F.R. § 17.161(b), (c). Mere dental treatment or cracking a tooth while eating is not sufficient to establish eligibility for treatment. Similarly, broken bridgework due to injury is not dental trauma because it must be the injury of a natural tooth. Further, for the purposes of determining whether a Veteran has treatment eligibility, the term “service trauma” does not include the intended effects of treatment provided during the Veteran’s active service. VAOPGCPREC 5- 97 (1997), 63 Fed. Reg. 15,556 (1997). In this case, the Veteran does not allege, nor does the evidence suggest, entitlement on a Class II (a) basis, which provides treatment for Veterans who have a service-connected noncompensable dental condition or disability which has been adjudicated as resulting from combat wounds or other service trauma. See 38 U.S.C. § 1712(a)(1)(C); 38 C.F.R. § 17.161(c). Service dental records show that the Veteran first was evaluated for impacted teeth, and treated primarily with sedation and extraction (Nos. 1, 16, 17, and 32) in January 2002. He was treated for periodontal disease, with scaling and root debridement as needed, and heavy plaque (No. 18) in September 2003. The Veteran was treated for caries and obtained a crown (No. 20) in August 2004. He reportedly chipped his front teeth in November 2004, and underwent a root canal (No. 8) and restoration of the teeth (Nos. 8 and 9). Subsequently, he was treated for defective restorations and recurrent caries (Nos. 15 and 30) in November 2006; and for occlusal defective composite (No. 30) in March 2007. Service records do not suggest any dental trauma to teeth; nor has the Veteran reported the loss of any teeth in service. The overall evidence does not suggest that the Veteran’s in-service dental treatment was associated with trauma. A dental condition related to service that is due to causes other than a combat wound or trauma is typically subject to the limitations of one-time treatment and timely application after service. 38 C.F.R. § 17.161(b). The Veteran, whose discharge from active service was in September 2008, did not apply for dental benefits within 180 days of service discharge; thus, he is ineligible for Class II dental treatment for tooth loss. The Veteran also is ineligible for the other classes of dental treatment set out in 38 C.F.R. § 17.161. The Veteran has not reported, nor does the record show a dental disability that could be compensable. See 38 C.F.R. § 4.150 (2018). Therefore, he would not be eligible for Class I dental treatment. Since he does not have, as mentioned above, a noncompensable service-connected dental disorder resulting from service trauma or combat wounds, the Veteran is ineligible for Class II(a) dental care. He was not a prisoner of war, and is therefore ineligible for Class II(b) or II(c) dental care. He has not made a prior application for dental benefits, and is not eligible for Class II(R) (Retroactive) treatment. The evidence does not show that the Veteran has a dental condition that aggravates a service-connected disability; nor does he have a service-connected disability rated as 100 percent disabling, or a total rating for compensation based on individual unemployability. Therefore, he is not eligible for Class IV dental treatment. He is not participating in a rehabilitation program under 38 U.S.C. chapter 31, and he has not reported being admitted or otherwise receiving care under 38 U.S.C. chapter 17. Since he does not meet any of the criteria for eligibility under 38 C.F.R. § 17.161, he cannot be authorized outpatient dental treatment for tooth loss. Under these circumstances, the Board must conclude that the Veteran—whose service is greatly appreciated and admired—has not presented a legally sufficient claim for the VA benefit sought, and that the claim must be denied on that basis. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Bilateral Hearing Loss Disability Service treatment records reveal a history of noise exposure in vehicle maintenance in active service. The Veteran denied ear pain, drainage or bleeding, dizziness, medications, and family history of hearing loss in May 2006. He reported chronic ear infections as a child, and tubes bilaterally at age five. Clinical evaluation in May 2006 reveals both ear drums were scarred but otherwise unremarkable. Acoustic reflexes were absent or elevated in the high frequencies bilaterally. Word recognition was excellent bilaterally, and speech reception thresholds agreed with pure tone averages bilaterally. The assessment was sensorineural hearing loss at 6000 hertz only in the left ear. Audiometric testing in March 2015 reveals pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 15 0 10 LEFT 5 0 0 10 0 By some medical authorities, auditory decibel thresholds of zero to 20 represent normal hearing, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). Hearing loss for purposes of VA disability compensation is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. At no time during the pendency of the appeal has there ever been competent evidence of a bilateral hearing loss disability. Neither service treatment records nor post-service records establish that the Veteran has a hearing loss disability of either ear, in accordance with 38 C.F.R. § 3.385. In the absence of disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Right Hand Disability Service treatment records show that the Veteran complained of right wrist pain of four weeks’ duration in July 2005. At the time he reported no history of injury. Examination revealed full range of motion with tenderness on dorsal flexion, and tenderness to palpation of dorsal aspect of joint line. There were full ranges of motion in digits. There was no swelling and no discoloration. X-rays were ordered, but the Veteran did not keep appointment. His separation examination in June 2006 reveals complaints of having pain and weakness in the right hand in Korea, and still having occasional pain when turning wrenches. Examination in June 2006 reveals no swelling of the wrist, and no tenderness on palpation of the wrist. Wrist motion was normal. VA records, dated in September 2015, show an assessment of remote history of crush injury to hand with no surgery or treatment at the time. In October 2015, the Veteran complained of right hand locking and cramping. He reported that a 700-pound transmission fell on his arm in 2005, and that three days later he noticed his hand was very weak with some movements. He first noticed the weakness when trying to lift a can of soda, and wore a wrist splint for about a year. He later noticed that his hand developed muscle cramps. The Veteran continued to have occasional hand weakness and occasional hand muscle cramps. His right hand occasionally went numb. Neurologic examination in October 2015 reveals that sensation to light touch was decreased on the posterior portion of the right hand; otherwise, it was intact. An electromyograph study revealed evidence of mild right median mononeuropathy at the wrist, involving the sensory fibers of the nerve only and without evidence of axonal involvement. Examination of the Veteran’s right hand in November 2016 was unremarkable for arthritis. The VA examiner opined that the Veteran’s right hand disability was less likely than not incurred in or caused by active service. In support of the opinion, the examiner reasoned that ranges of motion of the right hand were normal; and although the Veteran does have pathology to the right hand, it is not arthritis. Here, the Veteran has reported recurring symptoms of right hand cramping and numbness, following his discharge from active service. Where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). Moreover, the Veteran’s descriptions of the in-service history of crush injury in 2005 are consistent with his duties as a special purpose vehicle maintenance journeyman, which the Board finds credible and persuasive. Here, the evidence is in favor of finding that right hand disability is related to the in-service complaints of pain and weakness of the right wrist. The Board acknowledges the November 2016 VA opinion, in which the examiner reasoned that there is pathology to the right hand, although it is not arthritis. This opinion is persuasive, and corroborated by the Veteran’s lay statements of ongoing symptomatology. His statements are consistent with the circumstances of his service, and are not expressly contradicted by the record. When considering the competent and credible lay statements, and the post-service medical evidence substantiating the Veteran’s claim; and resolving all reasonable doubt in his favor, the Board finds that right hand disability is related to the in-service history of crush injury. See 38 C.F.R. § 3.102. Hence, service connection is warranted. Residuals of Right Foot Injury Service treatment records show that the Veteran was treated in November 2002 for verrucous lesions on his right foot, which were frozen with liquid nitrogen. The assessment was warts. His initial separation examination in June 2006 revealed no swelling of the feet, and no tenderness on palpation of the feet. In February 2008, the Veteran was treated for chronic right side mid-plantar foot pain of several months duration; the assessment then was plantar fasciitis. VA records, dated in January 2016, show that the Veteran complained of pain in the plantar aspect of both feet. He reported a sprain in 2001 on the right side, followed by swelling; and after the swelling resolved, he had less pain on the right foot. Imaging of the feet in August 2015 revealed metatarsus primus varus hallux valgus, left greater than right; and mild bilateral first metatarsophalangeal osteoarthritis. A November 2016 VA examination report shows that the Veteran continues to be bothered by bilateral plantar fasciitis. Pain was noted on physical examination, and pain contributed to functional loss. No other foot injuries were noted. Here, service connection has already been established for bilateral plantar fasciitis. The November 2016 examiner found no other residuals of foot injury. The Board concludes that the Veteran does not have right foot disability other than plantar fasciitis, and has not had such disability at any time during the pendency of the appeal. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Plantar fasciitis is already service connected. While the Veteran believes he has a current right foot disability other than plantar fasciitis, he is not competent to establish that he has disease or residual of injury to account for his lay complaint. In essence, the issue is medically complex, as it requires specialized medical knowledge of the interaction between multiple systems in the body and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Despite his complaints, in the absence of competent evidence of disease or residual of injury, the claim must fail. Accordingly, the preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Erectile Dysfunction The Veteran was evaluated for erectile dysfunction during his second period of active duty with his Reserve unit. Where there is a reasonable possibility that a condition is related to or is the residual of a condition or injury experienced in service, VA should seek a medical opinion as to whether the claimed disability is in any way related to the condition or injury experienced in service. Arthritis The November 2016 VA examination report includes pertinent physical findings of osteoarthritis of metatarsophalangeal joints of great toes. Given these physical findings and service connection for bilateral plantar fasciitis, a reasonable basis for a possible nexus is raised; and an addendum from the November 2016 examiner (or from a suitable substitute) is needed. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from December 2016 to the present. 2. Afford the Veteran a VA genitourinary examination; the claims folder must be reviewed in conjunction with the examination. The examiner must opine as to whether currently reported erectile dysfunction is at least as likely as not related to military service. If a symptom or manifestation of another disease or condition, such must be identified, and an opinion rendered as to the relationship of such to service. A full and complete rationale for all opinions expressed is required. 3. The November 2016 VA examination report should be returned to the examiner (or, if that examiner is unavailable, another suitable substitute) for an addendum opinion to determine the nature and etiology of any disabilities of the great toes. For each disability, the examiner must opine whether it is at least as likely as not related to an in-service injury or disease—to include service-connected bilateral plantar fasciitis. If other causes are more likely, those should be noted. A full and complete rationale for all opinions expressed is required. 4.After the above development, and any additionally indicated development, has been completed, readjudicate the claims on appeal. If the benefits sought are not granted, furnish a supplemental statement of the case and return the appeal to the Board, if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mary C. Suffoletta