Citation Nr: 21002144 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 17-28 095 DATE: January 12, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for a left eye vision impairment is denied. Entitlement to service connection for a right eye vision impairment is denied. Entitlement to service connection for a dental condition for compensation purposes is denied. REMANDED Entitlement to a rating in excess of 30 percent prior to September 20, 2016, and in excess of 50 percent from that date for posttraumatic stress disorder (PTSD), claimed as anxiety, insomnia, depression, psychiatric disorder depression, and alcoholism, is remanded. Entitlement to service connection for a left hand condition is remanded. Entitlement to service connection for a right hand condition is remanded. Entitlement to service connection for a left wrist condition is remanded. Entitlement to service connection for a right wrist condition is remanded. Entitlement to service connection for a right shoulder condition is remanded. Entitlement to service connection for a left knee condition is remanded. Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for a left leg condition is remanded. Entitlement to service connection for a right leg condition is remanded. Entitlement to service connection for a hernia is remanded. Entitlement to service connection for left ear hearing loss is remanded. Entitlement to service connection for right ear hearing loss is remanded. Entitlement to service connection for a sinus condition, claimed as chronic runny nose, is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for hepatitis C is remanded. Entitlement to service connection for migraines is remanded. FINDINGS OF FACT 1. The Veteran’s tinnitus began during his active service. 2. The preponderance of the evidence is against finding that the Veteran’s currently diagnosed bilateral cataracts and pingueculas began during his active service, or are otherwise related to an in-service event, injury, or illness; and the Veteran’s bilateral refractive error is a developmental defect and not a disease or injury for which service connection may be granted. 3. The record does not show that the Veteran has a current dental condition for which VA disability compensation may be paid. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a left eye vision impairment have not been met. 38 U.S.C. §§ 1110, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 4.9. 3. The criteria for entitlement to service connection for a right eye vision impairment have not been met. 38 U.S.C. §§ 1110, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 4.9. 4. The criteria for entitlement to service connection for a dental condition for compensation purposes have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.381, 4.150. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1966 to April 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of April 2015 and December 2016 rating decisions by a Department of Veterans Affairs (VA) Regional Office. In November 2019, the Veteran testified at a hearing before a Veterans Law Judge who is no longer employed at the Board. A transcript of the hearing is associated with the record. An October 2020 letter informed the Veteran that the judge who conducted the November 2019 hearing is no longer employed at the Board, and provided him an opportunity to have another hearing before a different Veterans Law Judge. The letter also informed the Veteran that if he did not respond within 30 days from the date of the letter, the Board would assume that he does not want another hearing and would proceed accordingly. The Veteran has not responded to the letter or otherwise indicated that he would like another Board hearing. In addition, more than 30 days have elapsed from the date of the October 2020 letter. Therefore, the Board will proceed with appellate consideration. The Veteran has not raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues denied in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In that regard, the Board notes that the development directed in the Remand section below pertains to the remanded issues, and there is no indication that evidence developed as part of those actions may be relevant to the issues denied in this decision. The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues decided. The Veteran should not assume that evidence that is not explicitly discussed in the decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 1. Entitlement to service connection for tinnitus The Veteran seeks entitlement to service connection for tinnitus. He has indicated that he first noticed the tinnitus during his active service after being exposed to noise while working on the flight deck of a ship. With respect to the current disability element of service connection, tinnitus is readily observable by laypersons, and medical expertise is not required to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). Therefore, the Veteran’s assertion that he currently has tinnitus constitutes competent evidence of a current disability of tinnitus. Furthermore, the Board finds that nothing in the record impugns the Veteran’s credibility on the matter, and concludes that the Veteran has a current disability of tinnitus. With respect to an in-service injury or disease, the Veteran’s service treatment records do not reflect complaint of or treatment for tinnitus. However, in August 2015 the Veteran told a VA audiological examiner that he first noticed the tinnitus during his active service when “we fired the big guns of the ship”. The Veteran similarly testified at the November 2019 Board hearing that he first noticed the tinnitus during his active service after being exposed to noise on the flight deck. As noted above, the Veteran’s statements as to the presence of tinnitus constitute competent evidence of its existence. The Board finds that nothing in the record impugns the Veteran’s credibility as to the onset of the condition. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible). Tinnitus, as an organic disease of the nervous system, may be service connected where it is first shown in service and has subsequent manifestations. See 38 C.F.R. §§ 3.303(b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, the Veteran has credibly reported that his tinnitus began during his active service and has persisted through the present. The Board resolves any remaining doubt in the Veteran’s favor and finds that the claim for entitlement to service connection for tinnitus must be granted. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for left and right eye vision impairment The Veteran contends that his bilateral vision impairment issues began during his active service and have continued through the present. The Veteran’s service treatment records show that the Veteran was seen January 1970 for complaints of eye strain and lacrimation on reading. He was examined and issued a prescription for glasses. In January 1971, he reported a burning sensation in the eyes with his current glasses and requested a new refraction. Thus, the evidence shows that the Veteran had bilateral refractive error during his active service. The Veteran attended a VA examination in June 2017 to determine the nature and etiology of any current eye disability. The examination revealed cataracts and pingueculas of the bilateral eyes. The Veteran also had decreased uncorrected visual acuity in both eyes. The examiner opined that the Veteran’s current eye conditions less likely than not were incurred during his active service or were caused by an in-service injury, event, or illness. As a rationale for that opinion, the examiner explained that the Veteran’s service treatment records do not show a diagnosis of early cataract, pingueculas, or dry eye syndrome. Rather, the service treatment records show that the in-service eye strain and lacrimation were related to a refractive error and were treated with glasses. The examiner’s opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges the Veteran’s belief that his current vision impairment is etiologically related to his active service. However, the Veteran in this case is not considered competent to provide a nexus opinion regarding that issue. The issue is medically complex, as it requires knowledge of the pathology of specific conditions of the eye and the interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Veteran’s statements in that regard are not probative and do not weigh against the probative value of the June 2017 VA examiner’s opinion. The Board further acknowledges that the Veteran’s refractive error of both eyes may have first manifested during his active service. However, refractive errors of the eyes are considered developmental defects and not disease or injury within the meaning of applicable legislation. See 38 C.F.R. §§ 3.303(c), 4.9. In the absence of evidence of any superimposed disease or injury during active service, service connection may not be allowed for refractive error of the eyes even if that error first manifested during service or if visual acuity decreased in service, as it is not a disease or injury within the meaning of applicable legislation relating to service connection. 38 C.F.R. §§ 3.303(c), 4.9; VAOPGCPREC 82-90 (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury). In this case, there is no indication that the Veteran had a disease or injury superimposed on his bilateral refractive error during his active service. Therefore, service connection may not be granted for the refractive error. In summary, the preponderance of the evidence is against finding that the Veteran’s currently diagnosed bilateral cataracts and pingueculas began during his active service, or are otherwise related to an in-service injury or disease. In addition, the Veteran’s bilateral refractive error, which may have first manifested during his active service, is a developmental defect and not a disease or injury for which service connection may be granted. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for left and right eye vision impairment. Because the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. 49. 3. Entitlement to service connection for a dental condition for compensation purposes The Veteran seeks entitlement to service connection for a dental condition for compensation purposes. He contends that he had fillings placed during his active service that then deteriorated and required further dental work following his separation from active service. Under VA law, compensation is only available for certain types of dental and oral conditions that are rated under 38 C.F.R. § 4.150, Diagnostic Codes 9900 to 9916. Diagnostic Code 9913 applies to service connection claims involving the teeth. Compensation is only paid for loss of teeth due to loss of substance of the body of the maxilla or mandible without loss of continuity. This only applies to bone loss through trauma or disease such as osteomyelitis, and not to the loss of the alveolar process as a result of periodontal disease, since such loss is not considered disabling. See Note following 38 C.F.R. § 4.150, Diagnostic Code 9913. VA regulations distinguish between “replaceable missing teeth” or periodontal disease and teeth lost as a result of “loss of substance of body of maxilla or mandible.” Simington v. West, 11 Vet. App. 41 (1998); 38 C.F.R. § 3.381. Replaceable missing teeth may be considered as service connected solely for the purpose of determining entitlement to dental examinations or outpatient dental treatment. However, only the loss of teeth due to the loss of substance of the body of either the maxilla or mandible through trauma or disease such as osteomyelitis is considered compensable and may be rated under the appropriate diagnostic codes. Thus, to warrant compensation for a dental disability, as opposed to outpatient dental treatment only, the evidence must show not only that there was dental trauma or disease, such as osteomyelitis, but that such trauma or disease caused a loss of substance of body of the maxilla or mandible resulting in a loss of teeth. Turning to the evidence of record, in a September 2015 statement the Veteran explains that had fillings placed during boot camp in 1966, that those fillings lasted about 12 years, and that he then needed replacement fillings and crowns. He has not contended, and the record does not indicate, that he suffered dental trauma or disease during service such that he has loss of teeth due to loss of substance of the body of the maxilla or mandible. Accordingly, the record shows that the Veteran has dental disabilities that have required fillings and crowns. The record does not show that the Veteran has loss of the substance of the body of the maxilla or mandible due to in-service dental trauma or disease such as osteomyelitis. As discussed above, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not compensable disabilities and may only be service-connected for the purpose of determining entitlement to outpatient dental treatment, which is not of issue in this case. The record does not suggest any other basis for awarding service connection for a dental disorder for VA compensation purposes. Thus, the criteria to award entitlement to service connection for a dental condition for compensation purposes have not been established, either through medical evidence or probative lay evidence. The Board notes that a claim for service connection for a dental disorder for compensation purposes is also a claim for VA outpatient dental treatment under 38 C.F.R. § 3.381. Mays v. Brown, 5 Vet. App. 302 (1993). A May 2015 letter reflects that the claim for entitlement to service connection for a dental condition for treatment purposes has been referred to an appropriate VA Medical Center for a determination as to whether the Veteran meets the basic eligibility requirements for dental treatment under 38 C.F.R. § 17.161. The letter also provided the Veteran instructions on how to contact the relevant section of the VA Medical Center regarding his possible eligibility for dental treatment. In summary, the record does not show that the Veteran has a current dental condition for which VA disability compensation may be paid. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for a dental condition for compensation purposes. Because the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. 49. REASONS FOR REMAND 1. Entitlement to increased ratings for service-connected PTSD is remanded. The Veteran’s testimony at the November 2019 Board hearing and statements he has made in support of his claim suggest that his PTSD has increased in severity since he was last afforded a VA examination in November 2016 and is more severe than as indicated by his medical treatment records. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his service-connected PTSD.   2. Entitlement to service connection for right shoulder, left and right hand, left and right wrist, left and right knee, and left and right leg conditions and for a hernia are remanded. The Veteran contends that he developed conditions of the right shoulder, hands, wrists, knees, and legs and a hernia due to strenuous activities during service, including pushing heavy equipment and handling hoses used to maintain and refuel aircraft on the flight deck. He has also reported that he banged his knees on the catwalk and on ladders while performing his duties on the flight deck. He has indicated that he felt pain throughout his body after performing those activities, but that he did not seek treatment for that pain out of fear of what might happen if he complained. The Veteran’s service treatment records do not show complaint of or treatment for right shoulder, hand, wrist, knee, or leg condition or for a hernia. However, the Board finds no reason to question the Veteran’s assertions that he banged his knees against the catwalk and on ladders or that he had pain after completing his duties during his active service. As such, the Board finds that the issues must be remanded so that the Veteran may be afforded an examination as to his claimed right shoulder, bilateral hand, bilateral wrist, bilateral knee, and bilateral leg conditions and hernia. See 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 3. Entitlement to service connection for a sinus condition, claimed as chronic runny nose, is remanded. The Veteran contends that he currently has a sinus condition that began during his active service. He has reported that he had a runny nose during his active service and has self-medicated since then. His medical treatment records show that he has been diagnosed with allergic rhinitis and seasonal allergies. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a sinus condition because no VA examiner has opined whether the condition began during the Veteran’s active service or is etiologically related to an in-service event, injury, or illness.   4. Entitlement to service connection for migraines is remanded. The Veteran contends that he currently has headaches that began during his active service. Specifically, he has reported that he began having headaches in service after being exposed to bright light during the day and fluorescent light during the night. His medical treatment records show current complaints of headaches. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for migraines because no VA examiner has opined whether the condition began during the Veteran’s active service or is etiologically related to an in-service event, injury, or illness. 5. Entitlement to service connection for left and right ear hearing loss is remanded. The Veteran was afforded a VA audiological examination in August 2015. The examiner diagnosed the Veteran with bilateral sensorineural hearing loss in the frequency range of 6000 Hertz (Hz) or higher. However, audiological testing did not reveal a hearing loss disability for VA purposes, as set forth in 38 C.F.R. § 3.385. The Veteran’s VA treatment records show that had an audiological consultation in November 2016 at which audiological testing revealed hearing within normal limits bilaterally from 250 Hz to 3000 Hz and at 6000 Hz, but mild sensorineural hearing loss bilaterally at 4000 and 8000 Hz. The consultation note does not provide numerical values for the Veteran’s puretone thresholds for that testing, nor does it indicate that such values are available. Given that the record shows that the Veteran had bilateral sensorineural hearing loss at 4000 Hz in November 2016 and, therefore, may now have a hearing loss disability for VA purpose, the Board finds the issue of entitlement to service connection for bilateral hearing loss must be remanded so that the Veteran may be provided another VA examination to determine whether the Veteran now has such a disability and, if so, whether the disability is related to his active service.   6. Entitlement to service connection for hypertension is remanded. VA has compiled a list of U.S. Navy ships that operated on the offshore waters of the Republic of Vietnam during the Vietnam era. When a veteran claims exposure to herbicides on one of those ships during the specified date range, exposure may be established on a presumptive basis if evidence shows that while the veteran was aboard the ship operated on close coastal waters for extended periods, with evidence that crew members went ashore, or smaller vessels from the ship went ashore regularly with supplies or personnel. The Veteran’s service personnel records reflect that he served aboard the U.S.S. Tripoli from October 1966 to April 1971. That ship is included as one of the vessels on the list and the specified timeframe for eligibility of the herbicide presumption for the U.S.S. Tripoli coincides with the period the Veteran was aboard the ship. Therefore, the Veteran is presumed to have been exposed to herbicide agents during his active service. The National Academy of Sciences (NAS) Institute of Medicine’s Veterans and Agent Orange: Update 2010, concluded that there is “limited or suggestive” evidence of an association between exposure to herbicide agents and hypertension. In November 2018, hypertension was moved by NAS to the category of “sufficient” evidence of an association from its previous classification in the “limited or suggestive” category. The NAS’s conclusions indicate that the Veteran’s hypertension may be directly related to his active service. As such, the issue must be remanded so that an opinion may be obtained. 7. Entitlement to service connection for hepatitis C is remanded. The Veteran asserts that he contracted hepatitis C as a result of in-service vaccinations he received via an air gun injector. The medical treatment evidence of record confirms a current diagnosis of chronic hepatitis C. VA has recognized that, despite the lack of any scientific evidence documenting the transmission of hepatitis C via air gun injectors, such transmission is biologically plausible. See VBA Fast Letter 04-13 (June 29, 2004). The Veteran was provided a VA examination as to his hepatitis C in June 2017. However, that examiner did not provide an opinion as to whether the Veteran’s hepatitis C may have been caused by his in-service vaccinations administered via an air gun injector. A remand is required to obtain such an opinion. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to the service-connected PTSD alone. 2. Schedule the Veteran for an examination or examinations by an appropriate clinician to determine the nature and etiology of any right shoulder, left hand, right hand, left wrist, right wrist, left knee, right knee, left leg, or right leg condition and any hernia. The examiner must opine whether it is at least as likely as not (50 percent probability or greater) that any such disability had its onset during the Veteran’s active service or is related to an in-service injury, event, or disease. The opinion must reflect consideration of the Veteran’s reports that he had body pain, including in the groin, after engaging in strenuous activities during service, including pushing heavy equipment and handling hoses used to maintain and refuel aircraft on the flight deck. The opinion must also reflect consideration of the Veteran’s reports that he banged his knees on the catwalk and on ladders while performing his duties on the flight deck. He has indicated that he did not seek treatment for his body pain during service out of fear of what might happen if he complained. The clinician must note that lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible. Therefore, the Veteran’s reports may not be deemed noncredible or untrue solely because they are not documented in the medical treatment records. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any sinus condition, to include the allergic rhinitis and seasonal allergies diagnosed in the medical treatment records. The examiner must opine whether it is at least as likely as not (50 percent probability or greater) that any such disability had its onset during the Veteran’s active service or is related to an in-service injury, event, or disease. The opinion must reflect consideration of the Veteran’s reports that he had a runny nose during his active service and has self-medicated since then. The clinician must note that lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible. Therefore, the Veteran’s reports may not be deemed noncredible or untrue solely because they are not documented in the medical treatment records. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any headache condition. The examiner must opine whether it is at least as likely as not (50 percent probability or greater) that any such disability had its onset during the Veteran’s active service or is related to an in-service injury, event, or disease. The opinion must reflect consideration of the Veteran’s reports that he first experienced headaches in service in response to exposure to bright light during the day and fluorescent light during the night. The clinician must note that lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible. Therefore, the Veteran’s reports may not be deemed noncredible or untrue solely because they are not documented in the medical treatment records. 5. Schedule the Veteran for an examination by an appropriate clinician to determine whether he has a current left or right ear hearing loss disability for VA purposes. If the Veteran has a current left or right ear hearing loss disability for VA purposes as defined under 38 C.F.R. § 3.385, the examiner must opine whether it is at least as likely as not (50 percent probability or greater) that the hearing loss is due to the Veteran’s in-service exposure to noise while working on the flight deck of a ship. The examiner should assume the Veteran’s reports of in-service exposure to noise from aircrafts are true. The examiner should note that, under applicable law, the absence of in-service evidence of a hearing loss disability is not always fatal to a service connection claim. Evidence of a current hearing disability and a medically sound basis for attributing that disability to service, such as determining that the disability is a delayed result of in-service noise exposure, may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service. 6. Obtain an opinion from an appropriate clinician regarding whether the Veteran’s hypertension is at least as likely as not (50 percent probability or greater) related to in-service exposure to herbicide agents. The opinion should discuss the National Academy of Sciences Institute of Medicine’s most recent conclusions regarding hypertension and herbicide agents, including that there is now considered to be “sufficient” evidence of an association. 7. Obtain an opinion from an appropriate clinician regarding whether the Veteran’s hepatitis C is at least as likely as not (50 percent probability or greater) etiologically related to his active service. Consideration must be given to the Veteran’s statements that his hepatitis C is related to his in-service vaccinations via an air injection gun. In that regard, the examiner must note that VA has acknowledged that, despite the lack of any scientific evidence documenting the transmission of hepatitis C via air gun injectors, such transmission is biologically plausible. M. Miller Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. J. Anthony, 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.