Citation Nr: 20007475 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 14-35 510 DATE: January 29, 2020 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. Entitlement to service connection for residuals of dental surgery (dental disorder) is denied. Entitlement to service connection for a psychiatric disorder, claimed as a nervous disorder, to include as secondary to a dental disorder, is denied. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss is manifested by hearing impairment corresponding to no higher than an auditory acuity of Level II hearing in the right ear and Level I hearing in the left ear. 2. The Veteran does not have a dental disorder as a result of combat wounds or other trauma during his active military service 3. The Veteran does not have a psychiatric disorder that is related to his active duty service and the competent and credible evidence fails to establish an etiological relationship between the Veteran’s claimed psychiatric disorder and his active service or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.86, Diagnostic Code 6100 (2018). 2. The criteria for service connection for dental trauma for compensation purposes have not been met. 38 U.S.C. §§ 1110, 1131, 1712, 5107 (2012); 38 C.F.R. § 3.303, 3.381, 4.150 (2018). 3. A psychiatric disorder was not incurred in or aggravated by service and may not be presumed related to a service-connected disability. 38 U.S.C. §§ 1110, 1111, 1131, 1132, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1959 to March 1961. These matters are on appeal from a February 2012 rating decision. In June 2018 these matters were remanded by the Board for further development and are now ready for adjudication. Increased Rating Claim The Veteran contends that his service-connected bilateral hearing loss is more severe than his noncompensable (zero percent) rating would indicate. Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are made. Bruce v. West, 11 Vet. App. 405 (1998); Lendenmann v. Principi, 3 Vet. App. 345 (1992). The regulations set forth eleven auditory acuity levels, designated from Roman numerals I to XI, in escalating order of hearing impairment. 38 C.F.R. § 4.85 (2018). The appropriate auditory acuity level is determined based on a combination of the percentage of speech discrimination and the puretone threshold average. Additional considerations apply when exceptional patterns of hearing loss are demonstrated, which are defined as either a) puretone averages of 55 or greater at 1000, 2000, 3000, and 4000 Hertz, or; b) a puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § § 4.86 (a) (2018). Once an acuity level is established for each ear, Table VII, Percentage Evaluations for Hearing Impairment, is used to determine the appropriate disability evaluation. The appropriate rating is determined based on a combination of the levels of hearing impairment established for each ear. Hearing loss disabilities are rated by application of a mechanical process that is explained here. Initially, VA must determine the Roman numerical designation for the degree of hearing impairment in each ear based upon a combination of the percent of speech discrimination and the pure tone threshold average. 38 C.F.R. § 4.85. In general, the Roman numerical designation is determined through application of 38 C.F.R. § 4.85 (h), Table VI. Under Table VI, the horizontal rows represent eight separate ranges of pure tone threshold averages, as demonstrated through audiometric testing for the frequencies at 1000, 2000, 3000, and 4000 Hertz. The average pure tone threshold is calculated by determining the sum of the pure tone thresholds demonstrated at the four aforementioned frequencies and dividing that sum by four. The vertical columns under Table VI represent nine separate ranges of speech discrimination percentage, as determined through Maryland CNC testing. The Roman numerical designation of impaired efficiency is determined for each ear by intersecting the horizontal row appropriate for the calculated pure tone threshold average and the vertical column appropriate for the demonstrated percentage of speech discrimination. 38 C.F.R. § 4.85 (b) (2018). Table VIA, which assigns a Roman numeral designation based solely on the puretone threshold average, is used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. 38 C.F.R. § 4.85 (c). In addition, where audiometric testing reveals an exceptional pattern of hearing impairment, Roman numerical designations may be determined under 38 C.F.R. § 4.85 (h), Table VIA (2018). Pursuant to 38 C.F.R. § 4.86, an exceptional pattern of hearing impairment exists where audiometric testing reveals either: (1) pure tone thresholds of 55 decibels or more at each of the frequencies at 1000, 2000, 3000, and 4000 Hertz; or (2) a pure tone threshold at 30 decibels or less at 1000 Hertz and 70 decibels or greater at 2000 Hertz. 38 C.F.R. §§ 4.85 (h); 4.86 (2018). After the Roman numerical designation has been determined for each ear, VA then determines the appropriate disability rating through application of 38 C.F.R. § 4.85 (h), Table VII (2018). Table VII is applied by intersecting the appropriate horizontal row (which represents the Roman numerical designation for the poorer ear) with the appropriate vertical column (which represents the Roman numerical designation for the better ear). 38 C.F.R. § 4.85 (e) (2018). In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak, 21 Vet. App. at 455. The Court also noted, however, that even if an audiologist’s description of the functional effects of the veteran’s hearing disability was somehow defective, the veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. Id. Turning to the merits of the claim, on February 2012 VA hearing loss and tinnitus Disability Questionnaire (DBQ) examination, puretone thresholds for the right ear, in decibels, at 1000, 2000, 3000, and 4000 Hz were as follows: 50, 40, 55, and 70 decibels; the average puretone decibel loss was 54 decibels. The pure tone thresholds for the left ear, in decibels, at 1000, 2000, 3000, and 4000 Hz as follows: 15, 30, 45 and 50 decibels; the average puretone decibel loss was 35 decibels. The CNC word list speech recognition score was 96% in the right ear and 100% in the left ear. Under Table VI, these audiometric findings correspond to Level I hearing loss, bilaterally. Those Roman numerical designations equate to a zero percent disability rating under Table VII. Regarding the functional impact of the bilateral hearing loss disability, the Veteran reported difficulty hearing in noisy environments and watching television. Regarding occupational functional effects, he reported that his hearing loss interfered with his functions as a college instructor, because it was difficult to hear students in the classroom. VA treatment records include a July 2014 audiology assessment which indicates that no change in hearing was reported. Puretone thresholds for the right ear, in decibels, at 1000, 2000, 3000, and 4000 Hz were as follows: 50, 45, 60, and 70 decibels; the average puretone decibel loss was 56 decibels. The pure tone thresholds for the left ear, in decibels, at 1000, 2000, 3000, and 4000 Hz as follows: 30, 40, 50, and 50 decibels; the average puretone decibel loss was 43 decibels. The CNC word list speech recognition score was 96% in the right ear and 100% in the left ear. Under Table VI, these audiometric findings correspond to Level I hearing loss, bilaterally. Those Roman numerical designations equate to a zero percent disability rating under Table VII. On May 2016 VA hearing loss and tinnitus DBQ examination, puretone thresholds for the right ear, in decibels, at 1000, 2000, 3000, and 4000 Hz were as follows: 55, 50, 60, and 70 decibels; the average puretone decibel loss was 59 decibels. The pure tone thresholds for the left ear, in decibels, at 1000, 2000, 3000, and 4000 Hz as follows: 30, 45, 50, and 50 decibels; the average puretone decibel loss was 44 decibels. The CNC word list speech recognition score was 96% in the right ear and 100% in the left ear. Regarding the functional impact of the bilateral hearing loss disability, he again complained of difficulty listening in noisy environments and performing his duties as a college instructor. Under Table VI, these audiometric findings correspond to Level II hearing loss in the right ear and Level I hearing loss in the left ear. Those Roman numerical designations equate to a zero percent disability rating under Table VII. A July 2016 private audiology evaluation indicates speech discrimination in the right ear was 80% and 90% in the left ear. In May 2019, the audiologist confirmed that the speech discrimination percentage was determined through Maryland CNC testing. In April 2017, the Veteran underwent a private Ear Conditions DBQ examination at which time audiologist Dr. L.A. opined that his hearing loss impacted his ability to work. She also indicated an audiogram was obtained, but it was not attached to the report of examination report. Pursuant to the Board’s June 2018 remand, in May 2019 the Veteran was provided with a VA Form 21-4142, Authorization to Disclose Information, to obtain any outstanding audiogram. However, he failed to provide VA with the requested authorization. On March 2018 VA hearing loss and tinnitus DBQ examination, puretone thresholds for the right ear, in decibels, at 1000, 2000, 3000, and 4000 Hz were as follows: 50, 50, 60, and 70 decibels; the average puretone decibel loss was 58 decibels. The pure tone thresholds for the left ear, in decibels, at 1000, 2000, 3000, and 4000 Hz as follows: 30, 50, 50, and 55 decibels; the average puretone decibel loss was 46 decibels. The CNC word list speech recognition score was 96% in the right ear and 100% in the left ear. Under Table VI, these audiometric findings correspond to Level II hearing loss in the right ear and Level I hearing loss in the left ear. Those Roman numerical designations equate to a zero percent disability rating under Table VII. Regarding the functional impact of the bilateral hearing loss disability, he had difficulty understanding conversations. No occupational functioning effects were reported. Applying the relevant rating criteria, the Board notes that an initial compensable rating for the Veteran’s bilateral hearing loss is not warranted. The Board is mindful that an audiologist must provide a description of the functional effects caused by a hearing loss disability. Martinak v. Nicholson, 21 Vet. App. 447 (2007). On February 2012, May 2016, and March 2018 VA examination, the Veteran complained of difficulty hearing in noisy environments and stated that his hearing loss interfered with his duties as a college instructor. The Board finds these comments are sufficient to comply with the applicable VA policies. Id. The Board notes that the Veteran is competent to report complaints such as difficulty hearing as this observation comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board also acknowledges the Veteran’s belief that his symptoms are of such severity as to warrant a higher rating and has taken these contentions seriously. However, neither the Veteran or his representative is competent to identify a specific level of disability of his bilateral hearing loss according to the appropriate diagnostic code. On the other hand, such competent evidence concerning the nature and extent of the Veteran’s bilateral hearing loss has been provided by the examining VA audiologists who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly addresses the criteria under which this disability is evaluated. Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).] Service Connection Claims Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Service connection may also be warranted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). 1. Dental disorder The Veteran contends that he suffered trauma of an Army dentist extracting “all” of his teeth at a young man (recruit) is the basis of his nervous condition. He maintains that he had perfectly good teeth were extracted without explanation and that he was threatened when he protested the extractions. Generally, service trauma is defined as an injury or wound produced by an external physical force during a service member’s performance of military duties. See Nielson v. Shinseki, 607 F.3d 802 (Fed. Cir. 2010). The term dental trauma does not include, for example, the intended effects of treatment by VA. See VAOPGCPREC 5-97. Dental trauma does not include intended results of proper medical treatment provided by the military. See Nielson, 607 F.3d 802. In Nielson, the claimant had certain of his teeth removed due to infection, an intended effect of proper medical treatment. However, the Federal Circuit elaborated in Nielson that that an unintended result of medical treatment due to military negligence or malpractice could be “service trauma” pursuant to 38 U.S.C. § 1712 (a)(1)(C). Nielson, 607 F.3d at 808. In an August 2011 letter private physician Dr. N.A.O. stated that the Veteran had two induction examinations with no dental problems and just a month before he was ordered to move to Germany received orders to have all of his teeth removed. She stated that even though the only dental problem that he had were cavities that were already taken care of, he had his teeth removed and a dental prosthesis placed instead. Pursuant to the Board’s June 2018 remand, on April 2019 VA dental and oral conditions DBQ examination, the Veteran reported that during basic training he had swelling in his face caused by dental problems and was taken to a dental clinic for evaluation. A May 1995 dental consultation was done to the Veteran while in basic training. Diagnostic findings include retained roots numbers 2, 3, 4, 28, 30, 31, and impacted tooth number 32. In May 1959 non-restorable caries in teeth numbers 12 through 18, 20, and 21 were diagnosed. In June 1959, non-restorable caries in teeth numbers 22 through 27 were also diagnosed. The treatment plan included extractions in conjunction with alveoloplasty and immediate dentures fabrication. In July 1959 preliminary impressions for full upper and full lower dentures were taken. In August 1959, final impressions were taken; occlusal records and jaw relation; teeth try in; and extractions of non-restorable caries with alveoloplasty and frenectomy, insertion of maxillary and mandibular full dentures. In March 1960, he underwent maxillary denture repair. In May 1960, maxillary and mandibular dentures were adjusted and in November 1960 he underwent mandibular repair. On VA examination, the Veteran presented with maxillary and mandibular complete edentulism and was wearing a dental prosthesis. In an April 2019 medical opinion, the April 2019 VA examiner opined that the claimed dental disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that in reviewing the Veteran’s dental STRs and April 2019 oral evaluation, the Veteran underwent multiple dental extractions in conjunction with alveoloplasty and the construction of maxillary and mandibular complete dentures from the time frame of May 1959 to November 1960, to eliminate focus of infection and non-restorable caries as stated in service treatment records, caused by bacteria and dental plaque deposits as a result of poor and inadequate oral hygiene techniques. In this case, the Board finds that the April 2019 VA medical examination and opinion provides highly probative and overwhelming evidence against this claim. In April 2019, a VA examiner reviewed the claims file, considered the Veteran’s documented and reported history, and performed a thorough evaluation. The examiner opined that the Veteran’s dental disorder was not related to service supported by a conclusion with a sufficient rationale. Therefore, the VA medical examination and opinion provide probative evidence against the Veteran’s claim of high probative weight. See Nieves -Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board has considered the private August 2011 private medical opinion which suggests that the Veteran underwent unnecessary dental procedures during service. However, the opinion is not shown to have been based on a review of the Veteran’s case as a whole. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). It is true that a review of the claims failure or lack thereof does not control the probative value of a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). However, these reports warrant less probative weight as none of them, unlike the April 2019 VA examination report, for example, is based on a current dental evaluation of the Veteran and complete review of the entire claims file. Id. The Board finds that the claim must be denied. Service connection for a dental disorder for compensation purposes is not warranted in this case, as the evidence does not show a compensable dental disability that was the result of loss of substance of the body of the maxilla or mandible due to in-service dental trauma or bone disease. While the Board finds the Veteran competent and credible to report undergoing dental procedures during service, the Veteran is not competent to determine whether the dental procedures were a form of dental trauma. The Federal Circuit Court defines “service trauma” as “an injury or wound produced by an external physical force during the service member’s performance of military duties.” Nielson v. Shinseki, 23 Vet. App. 56, 60 (2009); see also VAOPGCPREC 5-97. VA’s General Counsel held that dental treatment of teeth, even extractions, during service do not constitute dental trauma. See VAOPGCPREC 5-97. The Board finds the Veteran’s in-service dental work does not amount to dental trauma. There is no competent evidence to suggest that the Veteran’s dental disorder was due to loss of substance of body of maxilla or mandible due to in-service trauma or disease. Thus, service connection for a dental disorder is not established under 38 C.F.R. § 4.150. In making this determination, the Board notes that the decision is limited to whether service connection is warranted for compensation purposes. 2. Psychiatric disorder The Veteran contends that he has a psychiatric disorder related to his dental disability. In this regard, the Veteran has not asserted, nor does the record reflect that either any psychiatric disorder, first manifested during service or were otherwise related to any aspect of his service. It has only been claimed that the disability is secondary to a dental disorder. Accordingly, since the Veteran does not contend that any psychiatric disorder, is directly related to service and because the record similarly does not reasonably raise the theory of direct service connection, the Board will address only whether the Veteran is entitled to service connection for this disability on a secondary basis. See Robinson v. Mansfield, 21 Vet. App. 545, 552-56 (2008) (concluding “that the Board is not required sua sponte to raise and reject ‘all possible’ theories of entitlement in order to render a valid opinion” and “commits error only in failing to discuss a theory of entitlement that was raised either by the appellant or by the evidence of record”), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed.Cir.2009) (stating that “[w]here a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory”). The evidence of record includes an August 2011 private medical opinion in which the Veteran’s physician opined that the dental work the Veteran underwent during service led to the development of insecurity and self-esteem problems. She opined that “it is more probable than not that his teeth problem and nervous problem are service-connected due to the incident he had while at service.” However, since service connection has not been granted for any dental disability a dental disability may not serve as a predicate service-connected disability upon which to base his claim, and the claim based on “secondary” service connection fails as a matter of law. See 38 C.F.R. § 3.310; Sabonis v. Brown, 6 Vet. App. 426 (1994). There is no evidence to show that a service-connected disability caused or aggravated any psychiatric disorder. The findings set forth earlier in this decision reflect that service connection for a dental disability has not been established. As such, there is no factual or legal basis upon which to award service connection for a disability that is claimed as secondary to a disability that is not service connected. See 38 C.F.R. § 3.310. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Adams, 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.