Citation Nr: 1806553 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 16-03 746 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for headaches. 2. Entitlement to service connection for blackouts. 3. Entitlement to service connection for a dental disability for compensation purposes. 4. Entitlement to service connection for a dental disability for outpatient dental treatment purposes. 5. Entitlement to an initial rating in excess of 30 percent for an adjustment disorder with mixed anxiety and depressed mood. 6. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran is represented by: Adam Neidenberg, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD C. Banister, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1956 to February 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2013 and November 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues of entitlement to service connection for headaches, an initial rating in excess of 30 percent for adjustment disorder with mixed anxiety and depressed mood, and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A May 1957 rating decision denied service connection for headaches, and the Veteran did not appeal that decision; that decision is final. 2. The Veteran does not have a disability of the teeth due to in-service trauma or disease resulting in loss of body of the maxilla or mandible for which service connection can be granted for compensation purposes. 3. The probative evidence of record is against a finding that the Veteran's loss of teeth was caused by in-service trauma. CONCLUSIONS OF LAW 1. Evidence submitted to reopen the claim of entitlement to service connection for headaches is new and material, and therefore, the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. The criteria for establishing entitlement to service connection for a dental disability for compensation purposes have not been met. 38 U.S.C. §§ 1131, 1712, 5107 (2012); 38 C.F.R. §§ 3.303, 4.150 (2017). 3. The criteria for establishing entitlement to service connection for a dental disability for outpatient dental treatment purposes have not been met. 38 U.S.C. §§ 1131, 1712, 5107 (2012); 38 C.F.R. §§ 3.303, 3.381, 17.161 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). I. Claim to Reopen Service Connection for Headaches In a May 1957 rating decision, service connection for headaches was denied, and the Veteran did not perfect an appeal of that decision. Therefore, the May 1957 rating decision is final. See 38 38 U.S.C. § 7104 (2012); 38 C.F.R. §§ 20.200, 20.202, 20.302, 20.1103 (2017). In March 2012, the Veteran filed a claim to reopen service connection for headaches. In an August 2013 rating decision, the RO reopened the Veteran's claim, but denied it on the merits. Regardless of the RO's actions, the Board has a jurisdictional responsibility to consider whether it is proper for a claim to be reopened before addressing the merits. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). A final claim will be reopened if new and material evidence is presented. 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that 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); see also Shade v. Shinseki, 24 Vet. App. 110, 117-120 (2010). At the time of the May 1957 rating decision, the substantive evidence of record included service treatment records and an April 1957 VA examination report. The Veteran's claim was denied because the Veteran's headaches were considered to be due to his emotional instability caused by a personality disturbance. Since the May 1957 rating decision, service connection was granted for an adjustment disorder with mixed anxiety and depressed mood, and the Veteran's attorney submitted a link to an article published in the Handbook of Clinical Neurology indicating that headaches may be attributed to psychiatric disorders. As this new evidence relates to an unestablished fact necessary to substantiate the Veteran's service connection claim for headaches, the Board finds that the Veteran has submitted both new and material evidence, and the claim is therefore reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade, 24 Vet. App. at 117-120. II. Service Connection Dental Claim Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). 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). Generally, in order to prove service connection, there must be 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. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection may also be established for a disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran seeks service connection for a dental disability, which he asserts was caused or aggravated by in-service trauma. On his May 2012 application of for benefits, the Veteran indicated that he "lost all of [his] teeth" during service when he was struck in the mouth during a training exercise. In a February 2013 written statement, the Veteran indicated that he was hit on the left side of his jaw with a rifle butt in November 1956, which knocked out one tooth and cracked several others. He stated that he subsequently had to have all of his upper teeth extracted. During the October 2017 Board hearing, the Veteran testified that he had no dental problems prior to service and that the rifle butt injury knocked out two of his teeth and loosened several others, necessitating the removal of all of his teeth. 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). Disability compensation may be provided for certain specified types of service-connected dental disorders. 38 C.F.R. § 4.150. For other types of dental disorders, a veteran may be entitled to service connection for the purpose of outpatient dental treatment only. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 17.161. 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. These disabilities include chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss of the mandible, nonunion or malunion of the mandible, limited temporomandibular motion, loss of the ramus, loss of the condyloid or coronoid processes, loss of the hard palate, loss of teeth due to the loss of substance of the body of the maxilla or mandible and where the lost masticatory surface cannot be restored by suitable prosthesis, when the bone loss is a result of trauma or disease but not the result of periodontal disease. 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. Compensation is available for loss of teeth only if such is due to bone loss caused by trauma or disease, such as osteomyelitis, but not the loss of the alveolar process as a result of periodontal disease. 38 C.F.R. § 4.150, Note to Diagnostic Code 9913. Replaceable missing teeth are not compensable disabilities. 38 C.F.R. § 3.381(b). For other types of dental disorders not listed under 38 C.F.R. § 4.150, a veteran may be entitled to service connection for the purpose of outpatient dental treatment only. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 17.161. Various categories of eligibility exist for VA outpatient dental treatment. 38 U.S.C. § 1712; 38 C.F.R. § 17.161. Relevant to the claim at hand, eligibility for VA outpatient dental treatment may be established for veterans who have a noncompensable service-connected dental condition or disability adjudicated as resulting from combat wounds or other service trauma. 38 U.S.C. § 1712; 38 C.F.R. § 17.161(a), (c) (Class II(a) eligibility). Upon review of the record, the Board finds that service connection for compensation purposes is not warranted. The Veteran underwent a VA examination in July 2014, during which he reported having his upper and lower teeth extracted and replaced with dentures. It was noted that the Veteran did not have any anatomical loss or bony injury. As the Veteran's missing teeth were replaced with dentures, and there is no evidence of bone loss, he does not have a disability of the teeth for which service connection can be granted for compensation purposes. See 38 C.F.R. §§ 3.381(b), 4.150. With respect to the claim for outpatient dental treatment, the Board finds that the most probative evidence is against a finding that the Veteran's loss of teeth was caused by in-service trauma. Although the Veteran claims that he lost his teeth as a result of being hit in the face with a rifle butt, his statements or not consistent with the evidence of record. See Caluza v. Brown, 7 Vet. App. 498 (1995) (finding that in weighing credibility, VA may consider inconsistent statements, internal inconsistency, and consistency with other evidence of record). An August 1956 report of medical history shows that the Veteran reported severe tooth or gum trouble prior to his entrance into active duty. A dental examination conducted in October 1956, two days after the Veteran's enlistment and prior to the alleged rifle butt injury, indicates that the Veteran already needed a full upper denture and had disease or abnormalities of lower teeth numbered 17, 19, 20, 21, 29, 30, 31, and 32. Thereafter, service treatment records note multiple upper tooth extractions; however, there is no indication that any teeth were knocked out or removed due to trauma. See AZ, 731 F.3d at 1315. Although a January 1957 service treatment record shows that the Veteran reported a "bump on [the] head by rifle but[t] in boot camp" when he sought treatment for headaches, he made no mention of knocked out teeth or dental trauma. See id. A dental examination conducted upon the Veteran's discharge from active duty in February 1957 indicates that the Veteran had a full upper denture and disease or abnormalities of lower teeth numbered 17, 19, 20, 21, 29, 30, 31, and 32. Again, there was no mention of in-service dental trauma. See id. The Board finds the contemporaneous medical evidence to be more persuasive and credible than statements made to VA for purposes of seeking compensation. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). During the July 2014 VA examination, the Veteran reported having his teeth extracted during his first month of service after being hit in the face with a rifle. The examiner indicated that there was no evidence of a causal relationship between the Veteran's loss of teeth and his military service. In support of this, the examiner explained that the Veteran's teeth were extracted upon his entry into service, and a review of the record revealed no evidence to support the Veteran's contention that it was due to a rifle injury. The Board acknowledges the Veteran's assertion that the July 2014 VA examiner's opinion is inadequate because the examiner did not accept as truth the Veteran's claim that his teeth were knocked out by a rifle butt injury during service. However, competent lay testimony can be rejected if found to be mistaken or otherwise not credible. McLendon v. Nicholson, 20 Vet. App. 79, 84 (Vet. App. 2006). In this case, although a January 1975 service treatment record did note a "bump on [the] head by rifle but[t] in boot camp," the Board has already found that the Veteran's assertion that he sustained dental trauma during that injury lacks credibility. Accordingly, the Board finds that a remand for a new VA examination and/or opinion is not warranted. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Additionally, the Board acknowledges the Veteran's attorney's assertion that the Veteran should be entitled to the presumption of soundness, or alternatively, a finding that any preexisting dental condition was aggravated by service. However, further analysis concerning whether a preexisting dental disability was aggravated by service in not required in this case. In order to prevail on the issue of service connection, there must be competent evidence of in-service incurrence or aggravation of a disease or injury and competent evidence of a nexus between an in-service injury, disease, or incident and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009) ("The presumption of soundness . . . does not relieve the veteran of the obligation to show the presence of a current disability and to demonstrate a nexus between that disability and the in-service injury or disease or aggravation thereof."). Moreover, as noted above, service connection for treatment purposes is only available for dental disabilities resulting from combat wounds or other service trauma. 38 C.F.R. §§ 4.150, 17.161. Here, there is no probative evidence of record demonstrating that the Veteran sustained a dental trauma during service. In sum, the preponderance of the competent, credible, and probative evidence is against the claim, and service connection for a dental disability is not warranted for compensation or treatment purposes. See 38 C.F.R. §§ 4.150, 17.161; see also Gilbert, 1 Vet. App. at 53. ORDER New and material evidence having been received, the claim for service connection for headaches is reopened. Service connection for a dental disability for compensation purposes is denied. Service connection for a dental disability for outpatient dental treatment purposes is denied. REMAND In a November 2015 rating decision, service connection was granted for an adjustment disorder with mixed anxiety and depressed mood, and a 30 percent rating was assigned. In January 2016, the Veteran filed a notice of disagreement (NOD) with respect to the initial rating assigned to his service-connected psychiatric disability. To date, a statement of the case (SOC) has not been provided with respect to that issue. Although the Veteran has requested that the Board take jurisdiction over the merits of that claim, the Board declines to do so. See Manlincon v. West, 12 Vet. App. 238 (1999) (when there has been an initial adjudication of a claim and an NOD has been filed, but the appellant has not been issued an SOC, the Board should remand the claim for the issuance of an SOC); see also 38 U.S.C. § 7150 (2012) ("Appellate review will be initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case is furnished."); 38 C.F.R. § 20.202 (2017) ("Proper completion and filing of a Substantive Appeal are the last actions the appellant needs to take to perfect an appeal."). Accordingly, the issue of entitlement to an initial rating in excess of 30 percent for a psychiatric disability is remanded to the AOJ for the issuance of an SOC. After the AOJ has issued the SOC, the claim should be returned to the Board only if the veteran perfects an appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). With respect to the Veteran's service connection claim for headaches, as noted above, the Veteran's attorney provided a link to an article published in the Handbook of Clinical Neurology indicating that headaches may be attributed to psychiatric disorders. Therefore, the Board finds that a VA medical opinion should be obtained with respect to the question of whether the Veteran's headaches are caused or aggravated by his service-connected psychiatric disorder. See McLendon, 20 Vet. App. at 81. As the Veteran claims that he is unemployable due to due his headaches and psychiatric disability, his claim for TDIU is inextricably intertwined with those issues. Therefore, it is remanded for contemporaneous adjudication. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issues has been rendered). Relevant ongoing medical records should also be requested. 38 U.S.C. § 5103A (c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ should undertake all actions required by 38 C.F.R. § 19.26, including issuance of a statement of the case, so that the Veteran may have the opportunity to complete an appeal with respect to the issue of entitlement to an increased initial rating for an adjustment disorder with mixed anxiety and depressed mood. 2. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for headaches and blackouts. After securing any necessary releases, the AOJ should request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 3. Provide the claims file to an appropriate VA examiner to obtain an opinion with respect to the Veteran's claim for service connection for headaches. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. After a review of the claims file, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's service-connected adjustment disorder with mixed anxiety and depressed mood caused or aggravated (worsen beyond normal progression) his headaches. Please explain why or why not. The examiner's opinion should reflect a consideration of the article titled "Headache Attributed to Psychiatric Disorders" published in the Handbook of Clinical Neurology in 2010, available at https://www.ncbi.nlm.nih.gov/pubmed/20816461. If the examiner concludes the headaches are aggravated by his service-connected psychiatric disability, the examiner should attempt to quantify the degree of worsening beyond the baseline level of the headaches that is due to the psychiatric disability. A rationale for the opinions expressed should be provided. 4. After undertaking the development above and any additional development deemed necessary, the claims for service connection for headaches and blackouts, and entitlement to TDIU should be readjudicated. If the benefits sought on appeal remain denied, the Veteran should be furnished a supplemental statement of the case and provided an appropriate period to respond thereto before the case is returned to the Board, if in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs