Citation Nr: 18161135
Decision Date: 12/28/18	Archive Date: 12/28/18

DOCKET NO. 16-63 614
DATE:	December 28, 2018

ORDER

An initial compensable rating for an ear disorder, characterized as chronic otitis externa, is denied.

Service connection for a dental condition, to include loss of teeth and jaw disorder, for compensation and/or treatment purposes is denied.

FINDINGS OF FACT

1. The Veteran’s otitis externa has not manifested with recurrent itching and discharge, requiring frequent and prolonged treatment; and/or suppuration or aural polyps.  

2. The Veteran does not have a dental condition for which compensation may be granted, nor does he have a dental condition or disability as a result of trauma during his active military service, and does not otherwise meet the requirements for service connection for the limited purpose of receiving VA outpatient dental treatment for teeth.  

CONCLUSIONS OF LAW

1. The criteria for an initial compensable rating for chronic otitis media have not been met.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.31, 4.85, 4.86, 4.87, Diagnostic Code (DC) 6210.

2. The criteria for service connection for a dental condition, to include loss of teeth and jaw disorder, for compensation and/or treatment purposes have not been met.  38 U.S.C. §§ 1131, 1721, 5107; 38 C.F.R. §§ 3.303, 3.381, 4.150, 17.161.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 1973 to May 1979.  

The Board acknowledges the Veteran’s general request for a new VA ear examination.  However, while the Veteran does not specify why he is entitled to a new VA examination, the Board notes that the mere passage of time since an otherwise adequate examination was conducted in not a sufficient basis if there is no evidence indicating that there has been a material change in the severity of a service-connected disability.  38 C.F.R. § 3.327(a); See Palczewski v. Nicholson, 21 Vet. App. 174 (2007); VAOPGCPREC 11-95.  Here, the record does not suggest, and the Veteran and his representative have not provided any information or indication that the Veteran’s condition had worsened since the June 2014 VA examination.  In any event, the Board has reviewed the VA examination report and finds that the examination is adequate to adjudicate the claim.  Barr v. Nicholson, 21 Vet. App. 303 (2007).

Increased Rating

1. Entitlement to an initial compensable rating for an ear disorder, characterized as chronic otitis externa

The Veteran is seeking an increased rating for his service-connected ear disorder. 

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  See 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155. 

Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating.  38 C.F.R. § 4.7.  When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 3 8 C.F.R. § 4.3.

In cases where the Veteran’s claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as “staged” ratings.  Fenderson v. West, 12 Vet. App. 119 (1999).

In this case, the Veteran’s ear disorder, diagnosed as chronic otitis externa, has been assigned a noncompensable rating under 38 C.F.R. § 4.87, DC 6210.  In order to warrant a compensable rating for chronic otitis externa, the evidence must demonstrate ear symptoms that include swelling, dry and scaly or serous discharge, and itching requiring frequent and prolonged treatment.  Id.  

After a detailed review of the evidence, the Board determines that a compensable rating is not warranted for the Veteran’s ear disorder.  Specifically, in a June 2014 VA examination, the Veteran reported occasional episodes of dizziness, itching, and popping in both ears.  On examination, there was no evidence of any swelling, dry and scaly or serous discharge in the ear canal, as was as any itching requiring frequent and prolonged treatment.  In fact, the Veteran’s ear canal was noted to be normal.  Further, the Veteran’s gait was normal and there was no evidence of dizziness.  

Additionally, the Veteran’s treatment records do not reflect inner ear symptoms such as swelling, dry and scaly or serous discharge that would warrant a compensable rating.  Of note, while the Veteran’s February 2017 VA treatment records note a history of ear infections, there is not sufficient evidence that the Veteran requires frequent and prolonged treatment for his ear symptoms.  

In arriving at this conclusion, the Board has also considered whether or not the Veteran could receive a compensable rating under another relevant diagnostic code.  Specifically, a compensable rating under DC 6200 is not for application because there is no evidence of symptoms such as suppuration or aural polyps.  Further, while the Veteran indicated that he had episodes of dizziness, there is not sufficient evidence to demonstrate that he has a vestibular disorder for purposes of DC 6204 and/or that his dizziness is related to his current ear disability.  Additionally, a compensable rating under the remaining diagnostic codes between DCs 6200-6211 is not warranted as the Veteran is not service connected for these disorders.   

The Board has also considered the Veteran’s statements, including his testimony that his ear disability is worse than the ratings he receives.  As such, the Board must analyze the credibility and probative value of the evidence, 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.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  

Competency of evidence differs from weight and credibility.  While the Veteran is competent to report inner ear symptoms such as pain and itching, because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of his disorders according to the appropriate diagnostic codes.  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”). 

On the other hand, such competent evidence concerning the nature and extent of the Veteran’s disorders have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations.  The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated.

The Board also finds that consideration for an extraschedular evaluation, a component of a claim for an increased rating, is not warranted.  Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008).

In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran’s level of disability and symptomatology.  If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization.  If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration.  See Thun v. Peake, 22 Vet. App. 111 (2008). 

In this case, the evidence does not indicate that the Veteran’s disability picture is not be adequately contemplated by the applicable schedular rating criteria discussed above.  Specifically, the Board has reviewed all of his relevant symptoms related to the issue on appeal, to include his stated symptoms and limitations with respect to his daily life, and concludes that there are no symptoms that were not able to be addressed by the applicable Diagnostic Codes.  See Mittleider v. West, 11 Vet. App. 181 (1998).  As such, the Veteran’s symptoms are not which are so unusual that they are outside the schedular criteria. 

Therefore, given that the applicable schedular rating criteria are adequate in this case, the Board need not consider whether the Veteran’s disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted.  See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

Additionally, as the Veteran is seeking increased ratings for his ear disability, the Board acknowledges the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran.  However, as discussed, the Veteran has not asserted, nor does the record reflect that his ear disability prevents him from obtaining and maintaining substantial gainful employment.  Id.  As such, Rice is inapplicable in this appeal.  

Service Connection

2. Entitlement to service connection for a dental condition, to include loss of teeth and jaw disorder, for compensation and/or treatment purposes

The Veteran asserts that he is entitled to service connection for an injury to his jaw and teeth due to an infection from a root canal during service, and/or TMJ. 

In the context of dental claims, the United States Court of Appeals for Veterans Claims (Court) has specifically held that a claim for service connection for a dental disorder is also a claim for VA outpatient dental treatment under 38 C.F.R. § 3.381.  Mays v. Brown, 5 Vet. App. 302 (1993).  Thus, adjudication of the Veteran’s claim for service connection must also include consideration of service connection for the purpose of establishing eligibility for outpatient dental treatment as set forth in 38 C.F.R. § 17.161.  See also Douglas v. Derwinski, 2 Vet. App. 435, 440 (1992) (en banc) (holding that the Board is required to consider a veteran’s claim under all applicable provisions of law and regulation whether or not the claimant specifically raises the applicable provision); Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  

Service connection for compensation purposes can be established only for the specific 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 due to loss of substance of the body of the maxilla or mandible.  See Simmington v. West, 11 Vet. App. 41 (1998).  For loss of teeth, bone loss through trauma or disease such as due 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.  See Note to Diagnostic Code 9913, 38 C.F.R. § 4.150.  

Based on the evidence of record, service connection is not warranted under 38 C.F.R. § 4.150, as there is not sufficient evidence that the Veteran’s claimed disorder involves anything like impairment to the mandible or bone loss in the maxilla or mandible region.   

The Veteran’s service treatment records reflect that he had some infected teeth that were extracted during service.  Further, while there were two episodes of temporomandibular joint dysfunction (TMJ) during service, the Veteran did not have chronic complaints and his condition appeared to have resolved in service.  In fact, the Veteran’s October 1978 separation examination does not reflect a diagnosis or symptoms of a jaw/tooth disorder, including TMJ, and the Veteran specifically denied any issues thereto.  

Next, while the Veteran complains that he has bone loss due to his jaw infection during service, as well as a current diagnosis of TMJ, the evidence does not indicate that the Veteran has actual bone loss or other maxillary impairment, including TMJ.  Specifically, the March 2017 VA examiner opined that the Veteran does not have any symptoms or a diagnosis of a jaw disorder, to include TMJ.  Moreover, to the extent the Veteran had TMJ during service, the Veteran does not have any current symptoms (such as imitations in opening, soreness or pain, or clinically evident popping/clicking), nor did it cause any bone/tooth loss.  Additionally, the Veteran’s VA treatment records, including from October 2015, reflect that the Veteran does not have a diagnosis of TMJ.  

Therefore, while the Veteran claims that he has a mouth or jaw disorder, there is no objective medical evidence to support such a diagnosis. Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Further, service connection may not be established for compensation purposes for missing or damaged teeth.  Moreover, to the extent the Veteran is competent to report jaw/mouth pain, the Board acknowledges the holding in the United States Court of Appeals for the Federal Circuit in Saunders v. Wilkie, 2018 U.S. App. LEXIS 8467 (2018), which indicates that pain can constitute a “disability” under 38 U.S.C. § 1110.  However, in this case, there is no indication that the Veteran’s jaw pain causes sufficient functional limitation to be considered a disability for VA compensation purposes.  Accordingly, the Board finds that entitlement to VA compensation benefits for a dental disorder is not warranted.  

Next, the Board also considers whether service connection may be established for the purpose of outpatient dental treatment, based on the criteria set forth in 38 C.F.R. § 3.381.  See Mays v. Brown, 5 Vet. App. 302 (1993); see also Douglas v. Derwinski, 2 Vet. App. 435, 440 (1992).   

Service connection for purposes of outpatient dental treatment may be granted for a dental condition of any tooth and/or and periodontal tissue shown by the evidence to have been incurred in or aggravated by service, so long as the veteran falls under one of a number of specific classifications: 

Class I: Those having a service-connected compensable dental disability or condition; 

Class II: Those having a service-connected noncompensable dental condition or disability shown to have been in existence at time of discharge or release from active service, which took place after September 30, 1981, with at least 90 days of service during the Persian Gulf War or 180 days of other active service, and who applied for treatment within 180 days after release from active duty, or prior to September 30, 1981 with at least 180 days of service and who applied for treatment within a year of release from active duty; 

Class II(a): Those having a service-connected noncompensable dental condition or disability adjudicated as resulting from combat wounds or service trauma; 

Class II(b): Homeless and other enrolled veterans eligible for a one-time course of dental care under 38 U.S.C. 2062; 

Class II(c): Those who were prisoners of war, as determined by the concerned military service department; 

Class III: Those having a dental condition professionally determined to be aggravating disability from an associated service-connected condition or disability may be authorized dental treatment for only those dental conditions which, in sound professional judgment, are having a direct and material detrimental effect upon the associated basic condition or disability; 

Class IV: Those whose service-connected disabilities are rated at 100% by schedular evaluation or who are entitled to the 100% rate by reason of individual unemployability; and, 

Class V: Those participating in a rehabilitation program under 38 U.S.C. chapter 31, and dental services as are professionally determined necessary for any of the reasons enumerated in § 17.47(g).

See 38 U.S.C. § 1712; 38 C.F.R. § 17.161.

Based on the evidence of record, service connection for purposes of outpatient dental treatment is not warranted because the Veteran’s condition cannot be categorized under any of the specific classes listed in 38 C.F.R. § 17.161.  First, as discussed above, he does not have a dental condition or disability that may be service connected to either a compensable or noncompensable level.  Moreover, the claim on appeal is the first time he has submitted a claim for dental benefits, and is many years later than the requisite time limits to submit such a claim.  As such, he is not able to be categorized under either Class I or Class II.

Further, the Veteran also cannot be classified under Class II(a) since, in addition to not having a service-connected noncompensable condition, the evidence does not indicate that he lost any teeth on appeal due to dental trauma.  Specifically, the March 2017 determined that the Veteran did not lose any teeth due to his in-service episodes of TMJ.  Moreover, while the Veteran has indicated that he had teeth extracted due to an infection, he has not specifically asserted that he lost any teeth as a result of trauma.  Moreover, there is no other evidence of record to suggest that the loss of any current teeth on appeal were due to trauma.  In fact, the medical evidence, including private treatment records from May 2014, indicates that he lost his teeth after service due to infections that were unrelated to service.  

In this regard, the Board recognizes the Veteran’s essential assertion that he suffered TMJ, infections, and loss of teeth during active duty.  However, VA regulations are very specific that disorders such as treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses and periodontal disease are not compensable disabilities.  38 C.F.R. § 3.381(b).

Finally, the evidence does not indicate that the Veteran is eligible for any other class.  Specifically, there is no indication that he was a prisoner of war (POW), precluding entitlement to Class II(b) and Class II(c) treatment.  There is also no indication in the record that he has a dental condition that impairs or aggravates a service-connected condition, and his overall service-connected disability rating is not 100 percent.  Moreover, he is not a Chapter 31 vocational rehabilitation trainee, nor is he receiving or due to receive VA care and treatment under Chapter 17.

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In summary, there is no basis to grant service connection for a dental disorder for VA compensation or outpatient treatment purposes as a matter of law.  The Board is sympathetic to the Veteran’s arguments but, unfortunately, is unable to provide a legal remedy.  See Kelly v. Derwinski, 3 Vet. App. 171, 172 (1992).  Since the Veteran’s claim fails because of absence of legal merit or lack of entitlement under the law, the claim must be denied.

 

JAMES G. REINHART

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD	J. Meyer, Associate Counsel