Citation Nr: 20004845 Decision Date: 01/22/20 Archive Date: 01/21/20 DOCKET NO. 16-28 107 DATE: January 22, 2020 ORDER New and material evidence has been received to reopen the claim for service connection for sinusitis, and to this extent only this appealed claim is granted. New and material evidence has been received to reopen the claim for service connection for a lumbar spine disability, and to this extent only this appealed claim is granted. REMANDED The reopened claim for service connection for sinusitis is remanded. The reopened claim for service connection for lumbar degenerative disc disease is remanded. The claim for service connection for dental trauma/gum disease is remanded. FINDINGS OF FACT 1. A November 1995 rating decision denied service connection for sinusitis. The Veteran did not appeal that decision or submit additional evidence within the following year, and it became final. 2. Evidence received subsequent to the November 1995 decision is new and favorable to the claim for service connection for sinusitis. 3. An April 2014 rating decision denied service connection for a lumbar spine disability, characterized as lumbar degenerative disc disease. The Veteran did not appeal that decision or submit additional evidence within the following year, and it became final. 4. Evidence received subsequent to the April 2014 rating decision is new and favorable to the claim for service connection for a lumbar spine disability. CONCLUSIONS OF LAW 1. The November 1995 decision that denied the Veteran’s claim for service connection for sinusitis is final. 38 U.S.C. § 7105(c) (1991); 38 C.F.R. §§ 20.302, 20.1103 (1994). 2. Evidence received since the final November 1995 denial is new and material; the criteria to reopen the claim for entitlement to service connection for sinusitis have been met. 38 U.S.C. § 5108 (2012), 38 C.F.R. § 3.156 (2018). 2. The April 2014 rating decision that denied the Veteran’s claim for service connection for a lumbar spine disability is final. 38 U.S.C. § 7105(c) (2002); 38 C.F.R. §§ 20.302, 20.1103 (2013). 3. Evidence received since the final April 2014 denial is new and material; the criteria to reopen the claim for entitlement to service connection for a lumbar spine disability have been met. 38 U.S.C. § 5108 (2012), 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1973 to January 1977 and from October 1983 to September 1994. The Veteran testified before the undersigned Veterans Law Judge in October 2019. A transcript is of record. Claims to Reopen Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. “New” evidence means evidence “not previously submitted to agency decisionmakers.” “Material” evidence means “evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. § 3.156 (a). In order to be “new and material” evidence, the evidence must not be cumulative or redundant, and “must raise a reasonable possibility of substantiating the claim,” which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). 1. The claim for service connection for sinusitis is reopened. The Veteran contends that service connection for sinusitis is warranted based on chronic sinusitis having onset in service, and contends, in effect, that reopening of his claim is warranted based on new evidence supporting this claim. The Veteran was denied service connection for a sinus condition by a November 1995 RO decision based on the weight of the evidence being against the Veteran having a sinus condition which was incurred in or was caused by service. The RO then noted that while the Veteran was seen in late 1990 and early 1991 for complaints of nasal congestion and stuffiness, there was no evidence of surgical treatment or a chronic sinus condition. While VA treatment records indicated a history of nasal surgery, the RO noted that there was not a record of nasal surgery in service. The Veteran did not appeal the November 1995 decision and no pertinent evidence was submitted to the record within the year following that decision. Accordingly, that decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.302, 20.1103. At his hearing before the undersigned Veterans Law Judge in October 2019, the Veteran testified that he had a sinus problem before service but that they worsened in service and were worse when he returned from stationing in Thailand. He explained that growing up his sinus problems were seasonal, occurring in the spring or summer, but that now his sinus problems were continuous, adding that this was reflected in his medical records. VA treatment records reflect that the Veteran has a chronic sinus condition, which was not established at the time of the last prior final denial of the claim in November 1995. This new and material evidence warrants reopening the claim. 2. The claim for service connection for a lumbar spine disability (previously characterized as lumbar degenerative disc disease) is reopened. The Veteran contends that he has a lumbar spine disability which had its onset in service. He contends, in effect, that new evidence has been presented to support the claim. The Veteran was scheduled for a VA spine examination in July 1995, but he failed to report for the examination. In a November 1995 rating action addressing multiple claims, the Veteran’s lumbar spine was not addressed. The Veteran was initially denied service connection for a lumbar disability, characterized as lumbar degenerative disc disease, by an April 2014 RO decision. The RO denied the claim based on service treatment records not showing degenerative disc disease, VA treatment records showing current lumbar degenerative disc disease but no link to service, and no other evidence linking degenerative disc disease to service. The Veteran did not appeal the April 2014 decision and no new, pertinent evidence was submitted to the record within the year following that decision. Accordingly, that decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.302, 20.1103. In the appealed August 2018 decision, the RO denied reopening the claim for service connection for lumbar degenerative disc disease based on absence of new and material evidence. The record still lacked evidence of lumbar degenerative disc disease in service or a causal link to service. At his October 2019 hearing, the Veteran testified to back difficulties in service and being told that he had a degenerative back condition which he felt originated in service. This testimony constitutes new evidence potentially supportive of the claim. Hence, reopening of the claim for service connection for a lumbar spine disability is warranted. REASONS FOR REMAND As an initial matter, the Board notes that in December 2019 the Veteran submitted some records which were potentially supportive of the appealed claims. These consisted of a single page documenting four medical office visit notes dated from 1993 to 1995, with no indicated medical source. A careful review of the record reveals that this is a duplicate copy of treatment notes from Dr. F., a private family practice physician. These records were previously obtained and associated with the claims file in July 1995. These duplicated documents do not point to any needed evidentiary development. The Veteran submitted a reply received from the University of Mississippi Medical Center in December 2019 informing that the Veteran’s medical record was “administratively incomplete” at that time, and that upon completion they would process the Veteran’s request. The letter informed that they were requesting a 30-day extension to process the request. To the extent reasonable, the RO should provide any needed assistance to the Veteran in obtaining records in furtherance of the appealed claims. 1. The reopened claim for service connection for sinusitis is remanded. Remand is warranted because the Veteran should be afforded a VA examination to address whether the Veteran’s claimed chronic sinusitis developed had its onset in service or is otherwise causally related to service. See 38 U.S.C. § 5103A (d) (2012); 38 C.F.R. § 3.159 (c)(4) (2018); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 2. The reopened claim for service connection for lumbar degenerative disc disease is remanded. Remand is warranted because the Veteran should be afforded a new VA examination addressing any current lumbar spine disability and etiology as related to service. See 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); McLendon, 20 Vet. App. at 81. Upon remand, the examiner must consider the Veteran’s lay statements regarding his history of symptoms and treatment. The Veteran is competent to report the symptoms that he experienced and his history of treatment. See Charles v. Principi, 16 Vet. App. 370, 374- 75 (2002). 3. The claim for service connection for dental trauma/gum disease is remanded. At his October 2019 hearing before the undersigned, the Veteran testified that he had surgery in 1991 and that he now has more cold sensitivity in his teeth. Because the surgery was in service, he believed the dental trauma and gum disease should be service-connected. He added that he learned that sinus problems can cause dental problems, and he also wanted to claim his dental trauma as secondary to his claimed sinusitis. The Veteran’s claim of entitlement to dental trauma / gum disease, raises both the issue of service connection for compensation purposes and service connection for treatment purposes. See Mays v. Brown, 5 Vet. App. 302, 306 (1993). A claim of entitlement to service-connection for a dental disability for treatment purposes only is separate and distinct from a claim of entitlement to service-connection for a dental disability for compensation purposes. 38 C.F.R. § 3.381. The claim for periodontal treatment is referred to the RO for any appropriate action. 38 C.F.R. § 19.9 (b). Specifically, the RO should consider whether to refer the claim for dental treatment to the appropriate VA Medical Center. Dental disabilities are treated differently than medical disabilities in the VA benefits system. Generally, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses and periodontal disease will be considered service-connected solely for the purpose of determining entitlement to dental examinations or outpatient dental treatment under the provisions of 38 C.F.R. Chapter 17. 38 C.F.R. § 3.381. Under current legal authority, compensation is only available for certain types of dental and oral conditions, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla. See 38 C.F.R. § 4.150 (setting forth the schedule of ratings for dental and oral conditions). Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not compensable disabilities, but may be considered service connected solely for the purpose of establishing eligibility for outpatient dental treatment. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150. In his Form 9 submitted in September 2019, the Veteran informed that there were dental records missing from Lackland, Blytheville, Nakhon Phanom (Royal Thai Air Force Base), and Wurtsmith Air Force bases. He added that the time line and need for surgery were reflected by these records. At his December 2019 hearing, the Veteran testified that he was unable to obtain his dental records from Lackland Air Force Base, North KP Air Force Base, Blytheville Air Force Base in Arkansas, or Portsmouth Air Force Base in Michigan. He informed that those were his last duty stations. The Board has reviewed the Veteran’s service dental treatment records contained within the claims file and finds that these do not appear to be incomplete. Rather, they document the Veteran’s dental care up to a last in-service visit in April 1994. The service dental treatment records were associated with the claims file in November 1994. These records do reflect treatment at different facilities over the course of service, inclusive of an operative note from November 1991 from surgery consisting of flap curettage and bone grafting with use of Gore-Tex. There are also records of surgical follow up in December 1991. These records do not reflect the existence of additional dental records which have not been obtained. The Veteran was afforded a VA dental examination in July 1995. The examiner noted that the Veteran’s oral hygiene was excellent, with no bleeding during the examination and with gingiva of normal color. However, x rays and periodontal probing revealed “extensive bone loss in various areas of the mouth” with “excellent periodontal surgery which was done five to six years ago according to patient.” The examiner noted that excellent day-to-day care and periodontal surgery and maintenance visits “maintained the patient’s teeth and supporting structures in a superior manner.” In June 1995, the Veteran submitted claims including for a condition of the mouth. The Veteran was denied service connection for surgery of the mouth by a November 1995 rating action based on absence of evidence of permanent residuals or chronic disability following service. However, the present claim appears to be distinct from the claim addressed by the RO in November 1995 for service connection for residuals of surgery. In the appealed February 2014 decision, the RO denied service connection for dental trauma / gum disease based on absence of evidence of an event, injury, or disease in service related to the claimed condition, and absence of evidence of current disability related to service. The RO noted that compensation was not payable for missing teeth, periodontal disease, or gingivitis in the absence of complicating conditions which are subject to service connection. Rather, missing teeth, periodontal disease, and gingivitis are may only be entitled to outpatient dental treatment or examination under 38 C.F.R. §§ 17.120, 17.123. It is unclear from the present record whether the extensive bone loss for which the Veteran was treated in service and which was noted upon VA dental examination in July 1995 constitutes a disability manifested by loss of a portion of the ramus or loss of a portion of the maxilla, for which service connection may then potentially be established under 38 C.F.R. § 4.150. A new VA examination is warranted to address this question. Also at his October 2019 hearing, the Veteran referenced the RO’s inability to obtain dental treatment records from the University of Mississippi Medical Center Dental School. The Veteran then informed that he had ordered these records himself but had not yet received them because they were “on order” from off-site records storage. The Veteran then expressed a belief that he would receive these records within a week. The undersigned Veterans Law Judge advised the Veteran at the hearing to send them to the RO when he received them, and the RO would send the records to the Board for the undersigned’s review. The undersigned also then informed the Veteran to inform her office if an extension of time was needed to obtain the records. The Veteran submitted a reply received from the University of Mississippi Medical Center in December 2019 informing that the Veteran’s medical record was “administratively incomplete” at that time, and that upon completion they would process the Veteran’s request. The letter informed that they were requesting a 30-day extension to process the request. To the extent reasonable, the RO should provide any needed assistance to the Veteran in obtaining records in furtherance of the appealed claims. The matters are REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertaining to the disabilities at issue. This should include any additional VA treatment records as well as pertinent private records. With appropriate authorization and information from the Veteran, assist the Veteran in obtaining records of treatment from the University of Mississippi Medical Center, including, in particular, dental treatment records. Provide appropriate notice to the Veteran if efforts to obtain records are unsuccessful. 2. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any sinus disability. The electronic claims file must be reviewed for the examination, and the examination report should indicate that it has been reviewed. A complete history should be elicited from the Veteran. The examiner must consider the Veteran’s lay statements regarding his history of symptoms and treatment. The Veteran is competent to report the symptoms that he experienced and his history of treatment. See Charles v. Principi, 16 Vet. App. 370, 374- 75 (2002). For any sinus disability present during the claim period, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the disability developed in service or is otherwise causally related to service. Both past and current medical evidence as well as the Veteran’s past and current statements should be considered. The examiner should provide a complete rationale (an explanation supported by facts of record and medical knowledge) for opinions expressed. 3. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any dental / oral disability associated with any impairment of the mandible, loss of a portion of the ramus, or loss of a portion of the maxilla. The electronic claims file must be reviewed for the examination, and the examination report should indicate that it has been reviewed. A complete history should be elicited from the Veteran. The examiner must consider the Veteran’s lay statements regarding his history of symptoms and treatment. The Veteran is competent to report the symptoms that he experienced and his history of treatment. See Charles v. Principi, 16 Vet. App. 370, 374- 75 (2002). The examiner should specifically address whether the extensive bone loss as identified by VA dental examination in July 1995 or the dental/oral conditions for which the Veteran was treated in service were associated with any impairment of the mandible, loss of a portion of the ramus, or loss of a portion of the maxilla. If so, the examiner must explicitly state which of these is present and their extent, and if not, the examiner must explicitly state that none of these are present. For any disability present during the claim period associated with any impairment of the mandible, loss of a portion of the ramus, or loss of a portion of the maxilla, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the disability developed in service or is otherwise causally related to service. Both past and current medical evidence as well as the Veteran’s past and current statements should be considered. The examiner should provide a complete rationale (an explanation supported by facts of record and medical knowledge) for opinions expressed. 4. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any lumbar spine disability, to include any lumbar degenerative disc disease and associated pathology. The electronic claims file must be reviewed for the examination, and the examination report should indicate that it has been reviewed. A complete history should be elicited from the Veteran. The examiner must consider the Veteran’s lay statements regarding his history of symptoms and treatment. The Veteran is competent to report the symptoms that he experienced and his history of treatment. See Charles v. Principi, 16 Vet. App. 370, 374- 75 (2002). For any lumbar disability present during the claim period, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the disability developed in service or is otherwise causally related to service. If arthritis of the lumbar spine is identified, then the examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that the arthritis was present to a disabling degree within one year of the Veteran’s separation from service in September 1994. Both past and current medical evidence as well as the Veteran’s past and current statements should be considered. The examiner should provide a complete rationale (an explanation supported by facts of record and medical knowledge) for opinions expressed. 5. Thereafter, readjudicate the issues on appeal. If any determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last Statement of the Case. The Veteran and his representative should be afforded the applicable time period in which to respond. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Schechter 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.