Citation Nr: 21000142 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 15-45 994 DATE: January 4, 2021 ORDER Entitlement to service connection for a lung disorder, to include as secondary to asbestos exposure, is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for a dental disorder is denied. Entitlement to service connection for an acquired psychiatric disorder, claimed as PTSD, is denied. Entitlement to service connection for a headache disorder is granted. FINDINGS OF FACT 1. The Veteran’s lung disorder is not etiologically related to service, to include as secondary to asbestos exposure. 2. The Veteran’s bilateral hearing loss is not etiologically related to service. 3. The Veteran’s tinnitus is not etiologically related to service. 4. The Veteran’s dental disorder is not etiologically related to service. 5. The Veteran’s acquired psychiatric disorder is not etiologically related to service. 6. The Veteran’s headache disorder is etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a lung disorder, to include as secondary to asbestos exposure, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 3. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for a dental disorder have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.381, 4.150. 5. The criteria for entitlement to service connection for an acquired psychiatric disorder, claimed as PTSD, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 6. The criteria for entitlement to service connection for a headache disorder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1963 to October 1965. He appeals a June 2012 rating decision denying entitlement to service connection for a lung disorder, a headache disorder, bilateral hearing loss, tinnitus, a dental condition, and an acquired psychiatric disorder. In May 2018, the Veteran testified before the undersigned Veterans Law Judge. A transcript is of record. The Board previously denied the claims for entitlement to service connection for bilateral hearing loss, tinnitus, a dental condition, and an acquired psychiatric disorder in a May 2019 decision. The Court of Appeals for Veterans Claims (Court) vacated the Board’s decision with respect to those issues and remanded the claim for further development. Specifically, the Court found that the Board failed to comply with VA’s duty to assist by providing an inadequate statement of reasons and bases when it found that the Veteran was not eligible to participate in the RAMP program. The Veteran was afforded the opportunity to clarify whether he in fact wanted to opt-in to the RAMP program via a letter dated August 25, 2020. The Veteran was afforded 60 days from the date of the letter to respond. Neither the Veteran nor his representative responded to the letter within the time provided. As such, the Board will proceed to readjudicate the claims under the Legacy system. Service Connection Under the relevant laws and regulations, 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; 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), 3.304, 3.307, 3.309, 3.310. 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). 1. Entitlement to service connection for a lung disorder, to include as secondary to asbestos exposure. The Veteran contends that his lung disorder stems from exposure to asbestos in service. After review of the evidence, the Board finds that service connection is not warranted. As an initial matter, the Board notes that the Veteran served aboard the USS Caliente as a boiler technician and therefore exposure to asbestos is conceded. Review of his service treatment records does not show treatment for or complaints of any respiratory conditions during service. Thus, the sole question before the Board is whether a causal nexus exists between his current lung condition and his in-service asbestos exposure. For the following reasons, the Board finds that such nexus has not been established. The Veteran first began experiencing respiratory symptoms in 2004 or 2005. He was diagnosed with idiopathic pulmonary fibrosis (IPF) in 2007 and underwent a double lung transplant in 2008. In November 2019, the Veteran underwent a VA examination to determine the etiology of his lung disorder. The VA examiner opined that the Veteran’s IPF is not related to service. Idiopathic is defined as “of unknown or spontaneous origin.” Dorland’s Illustrated Medical Dictionary 912 (32nd ed. 2012). The examiner reasoned that the Veteran would have been diagnosed with asbestos related pulmonary fibrosis rather than IPF if the condition was related to asbestos exposure. The examiner further noted that the Veteran’s 2007 lung biopsy was negative for any asbestos. A review of the Veteran’s claims file does not reveal any medical opinions or other evidence that would contradict the opinion of the November 2019 VA examiner. The Board acknowledges the Veteran's contentions that his lung disorder was caused by service. Although lay evidence may be competent on a variety of matters concerning the nature and cause of a disorder, the etiology of a disorder is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Here, the Veteran is a lay person without appropriate medical training and expertise, and thus, is not competent to make an etiological conclusion regarding the cause of his lung disorder. In conclusion, the Board finds that the preponderance of the evidence is against a finding of a medical nexus between the Veteran’s lung disorder and any incident of active service, to include exposure to asbestos. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for bilateral hearing loss 3. Entitlement to service connection for tinnitus. Under 38 C.F.R. § 3.303(b), the nexus requirement is relaxed for claims for chronic diseases enumerated in 38 C.F.R. § 3.309(a). To show a chronic disease in service, the record must contain a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Certain chronic diseases will be presumed related to service if continuity of the same symptomatology has existed since service, with no intervening cause. Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2012). Hearing loss and tinnitus are chronic diseases afforded the relaxed standard. Fountain v. McDonald, 27 Vet. App. 258, 260 (2015). The disease must have become manifest to a degree of 10 percent or more within 1 year from the date of separation from service to qualify under the presumption. 38 C.F.R. § 3.307(a). As an initial matter, the Board concedes that the Veteran suffered acoustic trauma in service due to noise exposure. He argues that he was exposed loud noises from weapons, heavy, equipment, diesel engines, etc. while stationed aboard the U.S.S. Caliente. Importantly, the Service Department has conceded that the Veteran’s specialty as a boilerman carries a high probability of noise exposure. With regard to the Veteran’s service treatment record, his service treatment records are silent as to any complaints of hearing loss or tinnitus. He is shown as having normal hearing at both entrance and separation from active service. Notably, in post-serve reserve reports of medical history, the Veteran denied any hearing problems in both November 1966 and January 1967. Post-service medical records do not show any evidence of hearing loss or tinnitus until 2007. In fact, at his March 2012 VA examination, the Veteran reported that his hearing loss did not begin until nearly 40 years after separation from active service and his tinnitus began nearly 45 years after separation. Hence, continuity of symptomatology has not been shown based on the clinical evidence, including for purposes of the chronic disease presumption under 38 C.F.R. § 3.307(a)(3). The Board recognizes the statements from the Veteran and his wife regarding his history of symptoms since service. While they are competent to report that the Veteran experienced symptoms of decreased hearing and tinnitus since service, they are not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of a particular disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Furthermore, to the extent the Veteran asserts that his disorders have persisted since service, the Board determines that the Veteran’s reported history of continued symptoms while competent, is nonetheless not probative in establishing a relationship between his complaints and active service. The large gap in treatment for these disorders weighs against the Veteran’s claims. Further, the Veteran’s reserve service records from November 1966 and January 1967 directly contradict his assertions that his symptoms have persisted since service. Finally, the Veteran’s statements to the March 2012 VA examiner indicate that he only began to experience hearing loss and tinnitus many years after service. Therefore, the unsubstantiated statements regarding the claimed diagnosis and etiology of the Veteran’s disorders are found to lack competency. Moreover, a VA examiner opined in March 2014 that the Veteran’s hearing loss and tinnitus was less likely than not related to active service. The examiner noted that the Veteran did not have any hearing loss or significant hearing threshold changes during service or shortly thereafter. The examiner also observed that the Veteran only reported experiencing hearing loss and tinnitus in the last 5-6 years—over 40 years after service. Additionally, the Veteran had significant post-service occupational noise exposure as a police officer and bus driver, as well as recreational noise exposure from hunting and working on cars. The Board affords significant probative weight to the opinion of the March 2014 VA examiner as it was rendered by a qualified medical professional after full review of the evidence and objective examination of the Veteran. In summation, the Board finds the evidence of record does not support entitlement to service connection for either bilateral hearing loss or tinnitus is warranted.  4. Entitlement to service connection for a dental disorder. The Veteran contends that he lost several teeth in service after being kicked in the mouth. After review of the evidence, the Board finds that service connection is not warranted. Service connection for compensation purposes 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. Review of the Veteran’s service treatment record shows that had several missing teeth prior to entrance into active service. Upon separation from active service, service treatment record show that he was missing additional teeth. However, no evidence of record indicates that the additional missing teeth at separation were related to impairment of the mandible or bone loss in the maxilla or mandible region. In fact, the Veteran testified at his May 2018 hearing that he did not experience any trauma to his jaw in service, but rather “only the teeth themselves” were knocked out. The Veteran testified that he had “extensive dental work” in service but never actually claims that he suffered any trauma to his jaw. Further, the record does not contain any treatment for impairment of the mandible or bone loss in the maxilla or mandible region. The Board notes that entitlement to service connection is specifically limited to incidents of service that resulted in a disability. See Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the Veteran has not shown that he suffered a dental disability as set out in the rating criteria, service connection for compensation purposes is not warranted. Service connection for the purpose of establishing outpatient dental treatment. 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). 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, the Board finds that entitlement to service connection for the purposes of outpatient dental treatment is not warranted. As discussed above, the Veteran does not have a dental disability which is entitled to service connection for compensation purposes. Further, the record does not indicate that the Veteran is currently homeless or was at any time a prisoner of war. In addition, the Veteran is not in receipt of a 100 percent rating. The Board acknowledges the above Order granting entitlement to service connection for a headache disorder. However, the highest rating available for headaches under 38 C.F.R. § 4.124a, Diagnostic Code 8100, is 50 percent. As the Veteran is not currently service-connected for any other disabilities, the evidence demonstrates that the Veteran will not be in receipt of a 100 percent rating upon adjudication of this appeal. Finally, the record does not indicate, and the Veteran has not argued, that his dental condition aggravates any other condition which is, or may be, service-connected. In summary, the Veteran does not meet the criteria for entitlement to service connection for the purposes of outpatient dental treatment. 5. Entitlement to service connection for an acquired psychiatric disorder. Review of the Veteran’s service treatment records reveals that the Veteran endorsed feelings of depression, excessive worry, or nervousness at some point prior to entrance to active service. However, in-service treatment records do not reveal treatment for or complaints of any psychological problems. Moreover, the Veteran has not been diagnosed with a mental disorder at any point during the pendency of the appeal. Specifically, after a thorough review of the evidence of record, to include VA treatment records from May 2013, July 2014, August 2015, October 2017, and May 2018, the evidence does not reflect a current diagnosis related to a psychiatric disorder at any time during the period on appeal. Importantly, the Veteran was afforded a VA examination in November 2019 to assess his claimed PTSD. The examiner observed that the Veteran does currently have, nor has ever had, a diagnosed mental disorder. The examiner further noted that the Veteran had no symptoms of a mental disorder other than mild memory loss. The Board acknowledges the Veteran’s assertions and belief that he has a psychiatric disorder. However, he is not competent to provide a diagnosis in this case. The issue is medically complex and requires specialized medical education and knowledge of the interaction between multiple systems in the body, as well as the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, to the extent the Veteran is competent to report psychiatric symptoms such as depression, anxiety, and hypervigilance, his statements are contradicted by the medical evidence. Specifically, he denied any psychiatric symptoms in private treatment records from May 2013, July 2014, August 2015, October 2016, October 2017, and May 2018. In any event, the Veteran’s statements without any supporting medical evidence are not sufficient to demonstrate a diagnosed disability for VA compensation purposes. Furthermore, a competent VA medical professional determined that he did not have a diagnosed mental disorder after full review of the evid3nce of record and an in-person examination of the Veteran. As such, the preponderance of the evidence is against a finding that the Veteran has a psychiatric disorder at any point during the time on appeal. Rabideau, 2 Vet. App. 141. Accordingly, the claim is denied. 6. Entitlement to service connection for a headache disorder. The Veteran contends that his headache disorder began in service after he fell from a ladder in 1964 and has continued to the present. The Board finds that entitlement to service connection for a headache disorder is warranted. Review of the Veteran’s service treatment records show that he was treated for headaches in service on several occasions. The Veteran was first treated for headaches in November 1964. He was again treated for headaches in June and August of 1965 and then treated for a 3-week long headache in September 1965. At his May 2018 hearing, the Veteran reported that he has experienced the headaches ever since separation from service. Upon examination in November 2019, a VA examiner opined that the Veteran’s headaches were less likely than not related to service because the Veteran’s claimed in-service fall could not be verified. However, the Board notes that the Veteran is competent to testify to that which is actually observed and is within the realm of personal knowledge, such as headache pain. See Layno v. Brown, 6 Vat. App. 465 (1994). Therefore, because headaches are capable of lay observation and the evidence supports the Veteran’s credible contention that his headaches began in service and continued to the present, the Board finds service connection for a headache disorder is warranted. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Daniel Ballinger, Associate Counsel