Citation Nr: 18155855 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 15-01 678A DATE: December 6, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for migraine headaches is reopened; to this extent, the claim is granted. Entitlement to service connection for dental conditions is denied. REMANDED Entitlement for service connection for migraine headaches is remanded. Entitlement to a compensable evaluation for hearing loss is remanded. Entitlement to a compensable evaluation for fracture laceration left ring finger is remanded. FINDINGS OF FACT 1. By an April 2010 rating decision, the Regional Office (RO) denied the Veteran’s claim for service connection for migraine headaches; he was advised of the RO’s decision, and of his appellate rights. 2. The Veteran did not initiate an appeal of the RO’s April 2010 decision within one year; nor was new and material evidence received within a year. 3. Additional evidence received since the RO’s April 2010 decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to unestablished facts necessary to substantiate the claim for service connection for migraine headaches, and raises a reasonable possibility of substantiating the claim. 4. The Veteran does not have a dental condition or disability, to include missing teeth, which resulted from service trauma in the line of duty. CONCLUSIONS OF LAW 1. The Regional Office’s April 2010 rating decision to deny service connection for migraine headaches is final. 38 U.S.C. §§ 7105 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 2. New and material evidence has been received to reopen the Veteran’s claim for service connection for migraine headaches. 38 U.S.C. §§ 1131, 5108 (2012); 38 C.F.R. §§ 3.303, 3.156 (2017). 3. The criteria for entitlement to service connection for dental conditions have not been met. 38 U.S.C. §§ 1110, 1712; 38 C.F.R. §§ 3.102, 3.303, 3.159, 3.381, 4.150, 17.161. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1972 to October 1976. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from an April 2010 rating decision denying an increased rating for left ring finger, a November 2013 rating decision denying service connection for dental conditions and denying the claim to reopen entitlement to service connection for migraine headaches, and a July 2016 rating decision denying an increased rating for hearing loss and denying service connection for diabetes mellitus. The Veteran was afforded a hearing before the undersigned Veterans Law Judge in April 2018. On August 16, 2018, the Federal Circuit ordered the appeal of Procopio v. Wilkie, No. 17-1821 (U.S. Fed. Cir.). The order stated that the questions before the Federal Circuit include the following: “Does the phrase ‘served in the Republic of Vietnam’ in 38 U.S.C. § 1116 unambiguously include service in offshore waters within the legally recognized territorial limits of the Republic of Vietnam, regardless of whether such service included presence on or within the landmass of the Republic of Vietnam?” As of the date of this decision, Procopio is pending. As this appeal contains at least one issue (entitlement to service connection for diabetes mellitus due to herbicide exposure) that may be affected by the resolution of Procopio, the Board will “stay” or postpone action on this matter. New and Material Evidence A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of decision. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108 (2012); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing evidence not previously submitted to agency decision makers. 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. 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. 38 C.F.R. § 3.156 (a) (2017). 1. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for migraine headaches The issue of entitlement to service connection for migraine headaches was originally denied in an April 2010 rating decision because the evidence did not show an in-service event, illness, or injury. The Veteran did not initiate an appeal of this denial, and it became final. The Veteran submitted his military personnel records, VA treatment records from February 2013 to June 2017, private treatment records from June 2014, and lay statements from his sister and brother. The Veteran also gave testimony at an April 2018 Board hearing and was afforded a VA examination in June 2016. The military personnel records show the Veteran’s service aboard the USS Bradley. VA treatment and private treatment records show the Veteran’s diagnosis of and treatment for migraine headaches. Lay statements document the Veteran’s migraine headaches from 1973 and present. At the Board hearing, the Veteran stated he hit his head in September 1973 when the ship took a roll. He related that he has had recurring headaches since he hit his head. The military personnel records, VA treatment records, private treatment records, and lay statements are new because they were not of record at the time of the April 2010 rating decision. However, they are not material as they are cumulative or redundant of evidence present at the time of the April 2010 rating decision. The Veteran’s Board testimony is new because it was not of record at the time of the April 2010 rating decision and it is material because it provides information regarding an in-service event for headaches. As the evidence submitted is new and material, the claim for entitlement to service connection for migraine headaches is reopened. Service Connection Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (a) (2017). Establishing service connection generally requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Regulations also 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) (2017). 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). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, 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. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 2. Entitlement to service connection for dental conditions A claim of service connection for a dental disorder is also considered a claim for VA outpatient dental treatment. Mays v. Brown, 5 Vet. App. 302, 306 (1993). Effective February 29, 2012, the regulations provide that the VBA will adjudicate a claim for service connection of a dental condition for treatment purposes after the Veterans Health Administration (VHA) determines the Veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161 and VHA requests that VBA make a determination on questions that include, but are not limited to the following: whether the Veteran has former Prisoner of War status; whether the Veteran has a compensable or noncompensable service-connected dental condition or disability; whether the dental condition or disability is a result of combat wounds; whether the dental condition or disability is a result of service trauma; or whether the Veteran is totally disabled due to a service-connected disability. See Final Rule, Dental Conditions, 77 Fed. Reg. 4469 (Jan. 30, 2012); 38 C.F.R. § 3.381 (a) (2018). The Board observes that the RO referred the Veteran’s claim for service connection for treatment purposes to VHA in November 2013. No further action on the part of the Board on this matter is warranted at this time. Service connection for compensation purposes can only be established for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla. Compensation is available for loss of teeth only if such is due to loss of substance of the body of maxilla or mandible. Simmington v. West, 11 Vet. App. 41 (1998). For loss of teeth, bone loss through trauma or disease such as to osteomyelitis must be shown for purposes of compensability. The loss of the alveolar process as a result of periodontal disease is not considered disabling. 38 C.F.R. § 4.150, Diagnostic Code 9913, Note (2017). The Veteran asserts that he is entitled to service connection for dental conditions, specifically having full dentures due to bad material the military used. The regulations governing dental claims make a fundamental distinction between “replaceable missing teeth”, see 38 C.F.R. § 3.381 (a), 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. 38 C.F.R. § 4.150; Simington v. West, 11 Vet. App. 41, 44 (1998). There is no allegation of dental trauma in service. There is no evidence or even allegation of any damage to his maxilla (upper jaw bone) or mandible (lower jaw bone), or of any other impairment involving the mandible, ramus, or maxilla, during service. The Veteran’s separation examination stated the Veteran had no missing teeth. The Veteran’s service treatment records and dental record showed no evidence of dental trauma due to an in-service injury or wounds sustained in combat. The Board finds, therefore, that the criteria for a grant of service connection for dental conditions are not met, and that the preponderance of the evidence is against the claim of entitlement to service connection for dental conditions related to dental or facial trauma, to include missing teeth. In regard to a claim for missing teeth as due to periodontal disease as separate from any dental trauma, the Board notes that this is not a disability for which service connection can be granted for compensation purposes. 38 C.F.R. § 3.381. As such, the Veteran’s claim seeking compensation for a dental disorder manifested by periodontal disease is precluded by the regulation and must therefore be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS FOR REMAND 1. Entitlement for service connection for migraine headaches is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for migraine headaches because no VA examiner has opined whether the Veteran’s migraine headaches are due to his hitting his head while aboard the U.S.S. Bradley. 2. Entitlement to a compensable evaluation for hearing loss is remanded. At the April 2018 Board hearing, the Veteran asserted that his hearing loss has increased in severity since the Veteran was last examined by VA. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his hearing loss. 3. Entitlement to a compensable evaluation for fracture laceration left ring finger is remanded. The Board notes that the Veteran’s ring finger was last examined in December 2014. The Veteran provided testimony regarding functional impairment associated with his finger. The Board will afford the Veteran another VA examination to ensure that there is sufficient evidence of record to evaluate his disability for the entire appeal period. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of migraine headaches. The entire file must be made available to the examiner designated to examine the appellant, and the report of examination should include discussion of the Veteran’s documented history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease in active service, including hitting his head when the ship took a roll. The examiner should address the likelihood that an injury such as described by the Veteran caused his current migraine headaches (i.e., indicate whether the pathology/disease process associated with the Veteran's migraine headaches is consistent with the mechanism of injury claimed by the Veteran). The examiner is requested to provide a clear rationale and explain in detail the underlying reasoning for any opinions expressed. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 2. Schedule the Veteran for a VA examination to determine the current severity of his hearing loss. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The Veteran’s claims folder must be reviewed by the examiner in conjunction with the examination. The examiner should identify and completely describe all current symptomatology. 3. Schedule the Veteran for a VA examination to determine the current severity of his service-connected fracture laceration left ring finger disability. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The Veteran’s claims folder must be reviewed by the examiner in conjunction with the examination. The examiner should identify and completely describe all current symptomatology. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Alexia E. Palacios-Peters, Associate Counsel