Citation Nr: 20002990 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 16-55 672 DATE: January 14, 2020 ORDER Entitlement to service connection for a back disability is denied. Entitlement to service connection for a dental condition for compensation purposes is denied. Entitlement to a compensable disability rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran’s current back disability did not manifest during and is not causally related to his active service. 2. The Veteran does not have a dental disorder for which service-connected compensation is payable, including owing to claimed trauma to the jaw during active service. 3. The Veteran’s bilateral hearing has been manifested by hearing acuity of no worse than Level II in each ear. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a dental condition for compensation purposes have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.381, 4.150. 3. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from May 1973 to May 1977 in the United States Navy. The Veteran testified at a videoconference hearing before the Board in May 2018. A transcript of that hearing has been associated with the claims file. The Board remanded the issues for further development in December 2018. The case has been returned to the Board for appellate review. During the development subsequent to the remand, the Veteran was granted entitlement to service connection for an acquired psychiatric disability, specifically posttraumatic stress disorder (PTSD). The Board acknowledges that the Veteran’s claim was categorized as entitlement to service connection for an acquired psychiatric condition to include PTSD and major depressive disorder (MDD). The Board finds that the grant of entitlement to PTSD is a complete grant of service connection for an acquired psychiatric disorder as it includes all psychiatric symptoms currently exhibited by the Veteran. The Veteran did not submit a separate notice of disagreement on any downstream issue regarding the psychiatric issue. Therefore, a separate issue of entitlement to service connection for MDD is not currently before the Board. The Board also notes that the issue of entitlement to service connection for non-Hodgkin’s lymphoma was remanded in a separate May 2019 Board decision. The development required in that remand has not been completed, a supplemental statement of the case has not been issued, and that claim has not yet been returned to the Board for appellate review. Finally, the claim for service connection for a dental condition due to trauma to the jaw during service has been developed and adjudicated as a claim for service connection for a dental condition. The Court has held that a claim for service connection for a dental disorder is also a claim for VA outpatient dental treatment. See Mays v. Brown, 5 Vet. App. 302 (1993). In dental claims, the RO adjudicates the claim for service connection and the VA Medical Center (VAMC) adjudicates the claim for outpatient treatment. Effective February 29, 2012, VA amended its adjudication regulations regarding service connection of dental conditions for treatment purposes under 38 C.F.R. § 3.381. See 38 C.F.R. § 3.381(a). This section identifies some of the circumstances under which dental conditions that may not qualify as disabilities for purposes of VA disability compensation nevertheless may be service connected for purposes of VA dental treatment under 38 U.S.C. § 1712 and 38 C.F.R. § 17.161. The amendments clarify existing regulatory provisions and reflect the respective responsibilities of the Veterans Health Administration (VHA) and the Veterans Benefits Administration (VBA) in making determinations concerning eligibility for dental treatment. The revised version of 38 C.F.R. § 3.381 provides that VBA will adjudicate a claim for service connection of a dental condition for treatment purposes after VHA determines a Veteran meets the basic eligibility requirements of § 17.161 of this chapter and requests VBA make a determination as to certain questions, including, but not limited to: (1) former prisoner of war status; (2) whether the Veteran has a compensable or noncompensable service-connected dental condition or disability; (3) whether the dental condition or disability is a result of combat wounds; (4) whether the dental condition or disability is a result of service trauma; or (5) whether the Veteran is totally disabled due to a service-connected disability. 38 C.F.R. § 3.381. The record on appeal does not indicate that a determination has been made by the VAMC (VHA) regarding whether this claimant is eligible for VA outpatient dental treatment and other services. Thus, this issue has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, so is referring it to the AOJ for appropriate action. Service Connection 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 38 C.F.R. § 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). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 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). 1. Entitlement to service connection for a back disability. The Veteran contends that he has a back disability that is causally related to service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of degenerative arthritis of the spine, intervertebral disc syndrome, and herniated disc, and evidence shows that he has one complaint of back pain during service, the preponderance of the evidence weighs against finding that the Veteran’s diagnosed back disability began during service or is otherwise related to an in-service injury, event, or disease. The Board notes that the Veteran’s in-service complaint noted back pain for one day in March 1974. The Veteran was treated conservatively with a heating pad. The remainder of the Veteran’s service treatment records are silent for complaints, treatment, or diagnosis of a back disability. The May 1977 separation report of medical examination showed a clinically normal spine. Additionally, on the corresponding report of medical history, the Veteran specifically noted no recurrent back pain. VA treatment records show the Veteran was not diagnosed with degenerative changes until 2003, decades after his separation from service. While the Veteran is competent to report having experienced symptoms of back pain in service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of his current disability. The issue is medically complex, as it requires knowledge of anatomical relationships. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the July 2019 VA examiner opined that the Veteran’s back disability was not at least as likely as not related to an in-service injury, event, or disease. The examiner noted that during service, the Veteran’s back condition was acute only. He had one treatment for low back pain in March 1974. He was treated conservatively with a heating pad. There were no further service treatment records for low back pain. The examiner noted that the separation physical did not mention a back disability. In December 2003, lumbar curvature was concave left side. Minimal lumbar spine degenerative changes were noted. He then began to have chronic low back pain upon starting chemotherapy for lymphoma in 2010. The examiner noted no evidence of chronicity of care. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his back pain is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the July 2019 examiner’s opinion. Based on the evidence cited above, the Board finds that the preponderance of the evidence is against the claim of service connection for a back disability. As the preponderance of the evidence is against the claim for service connection for a back disability, the benefit of the doubt rule does not apply. 38 C.F.R. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for a dental condition for compensation purposes. The Veteran contends that he has a current dental condition that is causally related to his active duty, including a claimed trauma to the jaw during service. Disability compensation and VA outpatient dental treatment may be provided for certain specified types of service-connected dental disorders. For other types of service-connected dental disorders, the claimant may receive treatment only and not compensation. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150, 17.161. As already indicated, the claim for service connection for a dental condition for the purpose of obtaining VA outpatient treatment has been referred to the VAMC for appropriate action. This decision is limited to considering entitlement to service connection for a dental condition for compensation purposes. Dental disorders are treated differently than other medical disorders in the VA benefits system. See 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 17.161. As provided by VA regulations, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses and periodontal disease are not considered disabling conditions and may be considered service connected solely for establishing eligibility for VA outpatient dental treatment. See 38 C.F.R. § 3.381(a). Under current VA regulations, compensation is only available for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150. These conditions include various problems of the maxilla, mandible, or temporomandibular articulation, loss of whole or part of the ramus, loss of the condyloid process or coronoid process, loss of the hard palate, or loss of teeth due to loss of substance of the body of the maxilla or mandible due to trauma or disease such as osteomyelitis rather than as a result of periodontal disease. Therefore, in the absence of a claim for any of these disabilities, or evidence that the Veteran has such disabilities, service connection for compensation purposes for a dental disability or condition is not warranted. The Veteran was afforded a VA examination in June 2019. The examiner noted no dental issue other than the Veteran being edentulous with gingival irritation. The Veteran was not diagnosed with any of the conditions listed under 38 C.F.R. § 4.150 noted above. The VA examiner went on to note that the Veteran’s claimed dental condition was less likely than not incurred in or caused by the claimed injury during service. The examiner noted no objective evidence of a dental condition during service or loss of teeth during service. The Veteran’s teeth were extracted in 2011. Consequently, the Board concludes there is no basis for granting service connection for compensation purposes for any current dental disorder as the Veteran does not have a dental disorder set forth in 38 C.F.R. § 4.150. Based on the evidence cited above, the Board finds that the preponderance of the evidence is against the claim of service connection for a dental condition for compensation purposes. As the preponderance of the evidence is against the claim for service connection for a dental condition for compensation purposes, the benefit of the doubt rule does not apply. 38 C.F.R. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to a compensable disability rating for bilateral hearing loss. The Veteran contends that he is entitled to a compensable disability rating for his hearing loss due to its severity. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). A March 2012 VA examination reveals that the Veteran reported that he did not socialize with people as much due to his problems hearing. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 30 65 65 46 96 LEFT 30 35 70 70 51 96 A June 2019 VA examination reveals that the Veteran reported that the Veteran needs people to repeat themselves and that he has to increase the volume on the TV and phone. He struggled to understand speech and receive pertinent conversational information when in noise rich environments such as family gatherings, work meetings, or restaurants. The examiner noted miscommunication with family, friends, coworkers, and acquaintances leads to aggravation. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 30 40 70 70 53 86 LEFT 25 40 70 70 51 88 Applying the results above to Table VI, the findings yield a maximum numeric designation of Level II bilaterally. Entering the resulting bilateral numeric designation of Level II bilaterally to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on the evidence above, a compensable rating for the Veteran’s bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran’s reports of aggravation due to miscommunication and requiring adaptations such as turning the volume up on televisions and phones. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran’s main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doub t, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Patricia Veresink, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.