Citation Nr: 21000214 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 15-45 738 DATE: January 4, 2021 ORDER Service connection for a low back disability is denied. Service connection for a right shoulder disability is denied. Service connection for a right leg disability, to include a right hip disability, is denied. Service connection for a dental disability, for compensation purposes, is denied. Entitlement to nonservice-connected pension benefits is denied. FINDINGS OF FACT 1. The Veteran’s low back disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established, and the disability is not otherwise shown to be etiologically related to an in-service injury or disease. 2. The Veteran’s right shoulder disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established, and the disability is not otherwise shown to be etiologically related to an in-service injury or disease. 3. The Veteran’s right leg/hip disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established, and the disability is not otherwise shown to be etiologically related to an in-service injury or disease. 4. The Veteran is not shown to have a dental disability for which compensation is payable. 5. The Veteran has failed to meet his evidentiary burden to provide requested financial information for purposes of establishing entitlement to nonservice-connected pension benefits. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for an award of service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for an award of service connection for a right leg disability, to include a right hip disability, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for an award of service connection for a dental disability for compensation purposes have not been met. 38 U.S.C. §§ 1110, 1131, 1712, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.381, 4.150. 5. The criteria for an award of nonservice-connected pension benefits have not been met. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.3, 3.21, 3.23, 3.271, 3.272, 3.277. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from December 1974 to December 1978, and in the United States Army from January 1991 to February 1991. His decorations include the Army Service Ribbon, the National Defense Service Medal, and the Good Conduct Medal. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama. In January 2019, the Board remanded the issues currently on appeal to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denials and returned the case to the Board. See April 2020 supplemental statement of the case. In its January 2019 decision, the Board asked that the AOJ refer the matter of the Veteran’s entitlement to VA outpatient dental treatment to the Veterans Health Administration for an initial determination. Inasmuch as it does not appear from the record that such a referral has been made, the matter is again referred to the AOJ for further action, as appropriate. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseases, such as arthritis, to a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff’d sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the veteran’s present condition (e.g., whether the veteran’s condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary 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 (1990) 1. Service connection for a low back disability is denied. The Veteran seeks to establish service connection for a low back disability. He asserts that his low back disability is related to lifting heavy objects during service. 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 lumbar degenerative disc disease, the preponderance of the evidence weighs against a finding that his current low back disability began during service or is otherwise related to an in-service injury, event, or disease. The Veteran’s service treatment records contain no complaints of, treatment for, or diagnosis of a low back disability. An April 1988 reserve service examination report reflects a normal clinical evaluation of the spine, and a concurrent report of medical history shows that he denied having recurrent back pain, arthritis, or a bone, joint, or other deformity. See also February 1991 report of medical history. To the extent that the Veteran now asserts that his low back disability started in service and has continued since, the Board finds that such assertions are contradicted and outweighed by his own contemporaneous reports at service separation, as discussed above. In this regard, the Board is not relying on the absence of evidence, but rather on the contemporaneous, affirmative lay report of symptoms and history by the Veteran, as well as contemporaneous medical assessments of the spine during service and at service separation. Further, a September 2019 VA examiner opined that the Veteran’s low back disability was less likely than not incurred in or caused by service. The rationale was that there were no objective findings, to include the Veteran’s military occupational specialty (MOS), that may have caused, resulted in, or aggravated a current back condition. The examiner noted that there was no evidence of complaint or treatment for a back condition during service in the report of medical history. The examiner explained that the Veteran had mild primary degenerative disc disease with no mention of traumatic arthritis, and indicated that degenerative disc disease is considered a condition of aging although it may be cause by trauma or extended period of overuse. The examiner noted that the Veteran was in the Air Force from 1974 to 1978, some 40 years earlier, and in the Army for 3 weeks in 1991 (discharged due to not being MOS-qualified), neither of which would likely have any effect on the back at this time. The examiner also noted that a 2014 x-ray was reported as normal, and that strains are not precursors to degenerative disc disease, which is a condition of the spinal discs. The Board finds that the September 2019 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 that his low back disability is related to service. However, he is not competent to provide a nexus opinion in that regard. The issue is medically complex, as it requires knowledge of the musculoskeletal system and the development of lumbar degenerative disc disease decades after service separation. 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 September 2019 VA examiner’s opinion. The Veteran’s lumbar spine degenerative disc disease, which is a form arthritis, is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. There is otherwise no competent and probative evidence that the Veteran’s current low back degenerative disc disease was manifested to a degree of 10 percent or more within one year of separation from service, or that it is otherwise related to service. As such, service connection on a direct and presumptive basis is not warranted. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the appeal of this issue must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. 2. Service connection for a right shoulder disability is denied. The Veteran seeks to establish service connection for a right shoulder disability. He asserts generally that his right shoulder disability is related service. 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 right shoulder, the preponderance of the evidence weighs against a finding that his current right shoulder disability began during service or is otherwise related to an in-service injury, event, or disease. The Veteran’s service treatment records contain no complaints of, treatment for, or diagnosis of a right shoulder disability. An April 1988 reserve service examination report reflects a normal clinical evaluation of the upper extremities, and a concurrent report of medical history shows that the Veteran denied having a painful or “trick” shoulder, arthritis, or a bone, joint, or other deformity. See also February 1991 report of medical history. During a September 2019 VA shoulder and arm conditions examination, the Veteran reported onset of right shoulder pain and swelling in 2010. This evidence weighs against in-service onset. Further, the September 2019 VA examiner opined that the Veteran’s right shoulder disability was less likely than not incurred in or caused by service. The rationale was that there were no objective findings, to include the Veteran’s MOS, that may have caused, resulted in, or aggravated a current right shoulder condition. The examiner noted that the Veteran denied an injury to the shoulder or being treated for a shoulder condition during service, and there was no evidence of a complaint or treatment for a shoulder condition during service. The examiner further noted that the Veteran answered “no” to swollen or painful joints, or painful or “trick” shoulder in a 1988 report of medical history. The examiner explained that current x-rays revealed right shoulder degenerative joint disease, which was unchanged from 2016, and that there was no evidence of traumatic arthritis or old healing process of the shoulder. The examiner noted that degenerative joint disease is considered a condition of aging, and that although it may be caused by trauma or extended overuse, the Veteran was in the Air Force from 1974 to 1978, some 40 years earlier, and in the Army for 3 weeks in 1991, neither of which would likely have any effect on the shoulder at this time. The Board finds that the September 2019 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, 22 Vet. App. at 304. The Veteran believes that his right shoulder disability is related to service. However, he is not competent to provide a nexus opinion in that regard. The issue is medically complex, as it requires knowledge of the musculoskeletal system and the development of right shoulder degenerative joint disease decades after service separation. The record does not show that he has the medical training or credentials to make such a determination. Jandreau, 492 F.3d at 1377 n.4; see also Kahana, 24. Vet. App. 428. Consequently, the Board gives more probative weight to the September 2019 VA examiner’s opinion. The Veteran’s right shoulder degenerative joint disease, which is a form arthritis, is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. There is otherwise no competent and probative evidence that the Veteran’s current right shoulder degenerative joint disease was manifested to a degree of 10 percent or more within one year of separation from service, or that it is otherwise related to service. As such, service connection on a direct and presumptive basis is not warranted. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the appeal of this issue must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. 3. Entitlement to service connection for a right leg disability, to include a hip disorder, is denied. The Veteran seeks to establish service connection for a right leg disability. He contends generally that his leg disability is related service. 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 osteoarthritis of the right hip, the preponderance of the evidence weighs against a finding that the Veteran’s current right hip disability began during service or is otherwise related to an in-service injury, event, or disease. The Veteran’s service treatment records contain no complaints of, treatment for, or diagnosis of a right hip disability, to include a right hip disability. An April 1988 reserve service examination report reflects a normal clinical evaluation of the lower extremities, and a concurrent report of medical history shows that the Veteran did not report any right hip symptoms, and denied having arthritis, or a bone, joint, or other deformity. See also February 1991 report of medical history. At a September 2019 VA hip conditions examination, the Veteran reported onset of right hip pain and giving out in 2011. This evidence weighs against in-service onset. Further, the September 2019 VA examiner opined that the Veteran’s right leg/hip disability was less likely than not incurred in or caused by service. The rationale was that there were no objective findings, to include the Veteran’s MOS, that may have caused, resulted in, or aggravated a current right hip/leg condition. The examiner noted that the Veteran answered “no” to swollen or painful joints in a 1988 report of medical history. The examiner explained that current x-rays revealed right hip degenerative joint disease, and that there was no evidence of traumatic arthritis or old healing process of the hip. The examiner noted that degenerative joint disease is considered a condition of aging, and that although it may be caused by trauma or extended overuse, the Veteran was in the Air Force from 1974 to 1978, some 40 years earlier, and in the Army for 3 weeks in 1991, neither of which would likely have any effect on the hip/leg at this time. The September 2019 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, at 304. The Veteran believes that his right hip/leg disability is related to service. However, he is not competent to provide a nexus opinion in that regard. The issue is medically complex, as it requires knowledge of the musculoskeletal system and the development of right hip osteoarthritis decades after service separation. The record does not show that he has the medical training or credentials to make such a determination. Jandreau, at 1377 n.4; see also Kahana, 24. Vet. App. 428. Consequently, the Board gives more probative weight to the September 2019 VA examiner’s opinion. The Veteran’s right hip osteoarthritis, which is a form arthritis, is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. There is otherwise no competent and probative evidence that the Veteran’s current right hip osteoarthritis was manifested to a degree of 10 percent or more within one year of separation from service, or that it is otherwise related to service. As such, service connection on a direct and presumptive basis is not warranted. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the appeal of this issue must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. 4. Service connection for a dental disability is denied. The Veteran contends that he has a dental disability related to service. He asserts that during his deployment during Desert Storm, the military dentists started fabrication of upper and lower dentures that were never completed. He also contends that he has dental problems associated with in-service oral surgery, and that his teeth started to fall out after he left active duty service. See, e.g., December 2015 VA Form 9; September 2019 VA dental and oral conditions examination report. Service connection for compensation purposes is available for a dental condition resulting from dental trauma. However, VA General Counsel held that dental treatment, even extractions, during service do not constitute dental trauma. See VAOPGCPREC 5-97. 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. With respect to claims of entitlement to service connection for dental disabilities for compensation purposes, 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 the present case, the Board has thoroughly reviewed the Veteran’s service treatment records and acknowledges that he received dental treatment during his military service. However, the record does not show any in-service trauma. See 38 C.F.R. § 4.150. The Veteran underwent a VA dental and oral conditions examination in September 2019. Panographic and intraoral imaging results were noted to be within normal limits. The examination report did not show any loss of teeth due to loss of substance of the body of the maxilla or mandible without loss of continuity; nonunion or malunion of the mandible; loss of whole or part of the ramus; loss of the condyloid process; or loss of any part of the hard palate. Based on a review of all evidence of record, the Board finds that the Veteran does not have a compensable dental disability. The evidence does not show that that he has a current dental disability that is due to loss of substance of body of maxilla or mandible. The evidence establishes that his dental condition consists of missing teeth, which are not compensable dental disabilities under controlling law. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150. As compensation is only available for loss of teeth when such is due to the loss of substance of body of maxilla or mandible where bone loss through trauma or disease is shown, the Veteran’s dental condition does not meet the criteria. The Veteran has not presented any competent evidence that he has a dental disability for which compensation may be granted. Based on the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran’s claim. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). The appeal of this issue is denied. 5. Entitlement to nonservice-connected pension is denied. The Veteran seeks to establish entitlement to nonservice-connected pension benefits. Pursuant to 38 U.S.C. § 1521(a), nonservice-connected disability pension is a benefit payable to a veteran of a period of war who is permanently and totally disabled from nonservice-connected disability not the result of his own willful misconduct. A veteran is entitled to pension only if his income is not in excess of the applicable maximum annual pension rate (MAPR), as specified at 38 C.F.R. § 3.23 and changed periodically, as reported in the Federal Register. See 38 U.S.C. § 1521. The maximum rates for a veteran’s pension are reduced dollar for dollar by the amount of the countable income of a veteran, his spouse, and any dependent(s). 38 U.S.C. § 1521; 38 C.F.R. § 3.23(d). In this case, the record reflects that the Veteran meets the qualifying service criteria as defined in 38 C.F.R. § 3.3(a)(3)(i) based on more than 90 days of active service during the Vietnam war period, which is defined as running from February 28, 1961 to May 7, 1975. See also 38 U.S.C. § 101; 38 C.F.R. § 3.2. However, basic entitlement to nonservice-connected pension benefits exists only if the Veteran’s countable income is not in excess of the MAPR specified by law. In his February 2013 VA Form 21-526, the Veteran reported that he no household income. In a congressional submission dated in October 2017, the Veteran reported that he had been living on “one income” since 2010. However, he did not report the amount of such income. Pursuant to the January 2019 Board remand, the AOJ sent the Veteran a notice letter in July 2019, which requested that the Veteran provide his income and net worth information, as well as information pertaining to any unreimbursed medical expenses he may have incurred during the relevant period on appeal. As a condition of granting or continuing pension, VA may require from any person who is an applicant for or a recipient of pension such information, proofs, and evidence as is necessary to determine the annual income and the value of the corpus of the estate of such person. 38 C.F.R. § 3.277(a). The Board notes that, to date, the information with respect to the Veteran’s income, net worth and unreimbursed medical expenses has not been received. His failure to provide the requested information makes it impossible for VA to determine his pension eligibility. The Veteran has a duty to aid VA in developing his claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that the duty to assist is not a one-way street; if a claimant wishes help in developing her/his claim, s/he cannot passively wait for it in those circumstances where s/he may or should have information that is essential in obtaining putative evidence). Because the Veteran did not respond to VA’s request for additional information, the Board is constrained to find that he has not met his evidentiary burden for nonservice-connected pension benefits, as he has not provided the requisite financial information. Therefore, the claim for nonservice-connected pension benefits is without legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). As such, the Board finds that the criteria for nonservice-connected pension benefits have not been met. The appeal of this issue is denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ragheb, Johnny 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.