Citation Nr: 21002429 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 15-13 566 DATE: January 13, 2021 ORDER Entitlement to service connection for a low back disorder is denied. Entitlement to service connection for a respiratory disorder is denied. Entitlement to service connection for a dental disorder involving tooth #11, including a partial bridge, is denied. Entitlement to service connection for a dental disorder involving tooth #18 is denied. REMANDED Entitlement to service connection for a left hand disorder is remanded. Entitlement to service connection for a psychiatric disorder is remanded. FINDINGS OF FACT 1. A low back disorder was not present until years after service and is not etiologically related to service. 2. The Veteran does not have a respiratory disorder or chronic respiratory impairment. 3. A chronic service-connectable dental condition involving tooth #11 or #18 was not incurred in service and did not result from a combat wound or other service trauma. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disorder have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. 2. The criteria for service connection for a respiratory disorder have not been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. 3. The criteria for service connection for a dental condition involving teeth 11 or #18, to include for treatment purposes, have not been met. 38 U.S.C. §§ 1131, 1712; 38 C.F.R. §§ 3.381, 17.161. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1983 to February 1987. In June 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Veteran’s testimony suggests he desired to file a claim for service connection for residuals of in-service dental surgery, claimed as headache, loss of appetite, and dizziness. This issue has not been adjudicated by the RO. If the Veteran wishes to file a claim, he may do so by filing the appropriate form with the RO. VA previously characterized the Veteran’s dental arguments as a general claim for service connection for a dental condition or “dental issue/gum disease.” VA regulations state that the rating activity will consider each defective or missing tooth and each disease of the teeth and periodontal tissues separately to determine service connection. 38 C.F.R. § 3.382. The Veteran initially characterized the issue as residuals of unsuccessful implant surgery which the record indicates involved tooth #11 and has addressed dental procedures performed during boot camp, which the record indicates involved teeth #11 and 18. Thus, the Board has recharacterized the issues with the specificity required by regulation. The Board notes that the Veteran has presented argument regarding the extraction of tooth #19. The record does not suggest that tooth #19 is associated with the bridge as stated by the Veteran (it is a mandibular tooth whereas the bridge was maxillary). Thus, the Board will note consider it herein. If the Veteran wishes to file a claim for a different tooth or dental condition, he may do so by filing the appropriate form with the RO. Service Connection Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests arthritis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word “chronic.” When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The term “chronic disease” refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Low back disorder A December 1985 service record reveals the Veteran’s history of symptom of nasal congestion and back pain for one day. The diagnosis was rule out tonsillitis. January 1986 records indicate that X-ray imaging of the back and knee were performed after the Veteran complained of symptoms including numbness in the left leg but X-ray imaging revealed no significant abnormality. The December 1986 separation examination record reveals normal clinical findings and negative histories of recurrent back pain. A May 1999 treatment record reveals the Veteran’s history of a ruptured disc from a motor vehicle accident the prior year. A June 2019 VA examination record reveals the Veteran’s history that the low back pain began in 1985 after he fell backwards during a storm. The examiner diagnosed degenerative arthritis and radiculopathy. The examiner determined the lumbar condition was less likely than not related to service. The examiner stated that any lumbar condition in service was acute and that there was no evidence of chronicity of care. Service connection is not warranted for a lumbar spine disorder: the lumbar spine disorder was not present until years after the Veteran’s discharge from service and was not related to service including the reported in-service injuries. Although the service treatment records include a history of back pain in December 1985, the Board finds a chronic low back disorder was not incurred during service. Notably, the December 1985 complaint was not attributed to a back abnormality, X-ray imaging in 1986 was negative, and clinical examination and medical history were negative for abnormality at separation. Additionally, the initial diagnosis dates many years after discharge from service after an intervening motor vehicle accident, and a VA examiner has determined that the low back disability was not incurred in service. The VA examiner also determined the low back disorder is not etiologically related to service, and there is no medical evidence linking the low back disorder to service. The Veteran has reported that the low back symptoms began after injury in service, either after he was hit with a fuel line that threw him down a level, after he fell approximately 24 feet down after the ship tilted in the Black Sea, or after he fell backwards during a storm. He has reported medical care after the injuries and has stated that he could not walk for approximately 90 days after the Black Sea injury. The Veteran is competent to report his symptomatic and injury history. The Board finds his histories of continuous symptoms during and since service are not credible, however, because they are inconsistent with the record. The service treatment records reveal no treatment for a fall or inability to walk and no abnormal findings pertaining to the back; treatment records dated in May, November, and December 1998 reveal normal clinical findings for the musculoskeletal system; and the initial treatment record dated in May 1999 attributes the disorder to a post-service motor vehicle accident. The Board finds the current history of continuity of symptomatology is less probative than those more contemporaneous with the initial report of back abnormality. Accordingly, the claim must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim. 2. Respiratory disorder The Veteran has reported difficulty breathing since 1987, which he attributed to exposure to hazardous materials, asbestos, and smoke in service. He has reported diagnoses of possible asthma in 2013 and chronic obstructive pulmonary disease. The medical evidence of record reveals no diagnoses or abnormal findings indicative of a chronic respiratory disorder, and the June 2019 VA examiner determined there was no clinical evidence of asthma or any other respiratory disorder, including on pulmonary function testing. The Board finds the Veteran’s vague symptomatic histories are not probative evidence of a chronic disorder because the Veteran is not competent to attribute the reported symptoms to one distinct disorder rather than episodes of acute disorder/s, and the Board finds the clinical testing is more probative than the Veteran’s histories as to the existence of a service-connectable disorder. Although the Veteran has reported private diagnoses, the Veteran has not provided the date of diagnosis or otherwise indicated that his history is of contemporaneous diagnosis, and the private records of record do not reveal diagnosis of a chronic respiratory disorder. The Veteran has not provided the records or authorization for VA to obtain any additional records though requested by VA. See Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (VA’s duty to assist is not a one-way street; if a veteran wishes help, he/she cannot passively wait for it in those circumstances where his/her own actions are essential in obtaining the putative evidence). The Board finds the Veteran’s history of diagnosis is less probative than the negative clinical findings regarding a diagnosed disorder or functional impairment. Thus, the claim must be denied. See Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (VA’s duty to assist is not a one-way street; if a veteran wishes help, he/she cannot passively wait for it in those circumstances where his/her own actions are essential in obtaining the putative evidence). In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim. 3. Dental disorder The Veteran claims that service connection is warranted for dental issues/gum disease as a result of unsuccessful dental implant during service. He has reported that he had a tooth extraction and root canal and gum surgery and that he had to receive follow-up treatment several times due to inflammation and bleeding. Service connection will be granted for a dental disease or injury of individual teeth and the investing tissue shown by the evidence to have been incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.381(a). The dental conditions for which service-connected compensation benefits are available are set forth under 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. The regulations governing dental claims make a fundamental distinction between “replaceable missing teeth” (see 38 C.F.R. § 3.381(a)), and teeth lost as a result of loss of substance of body of maxilla or mandible due to trauma or disease such as osteomyelitis, and not loss of the alveolar process as a result of periodontal disease. See 38 C.F.R. § 4.150; Simington v. West, 11 Vet. App. 41, 44 (1998). Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease will be considered service connected solely for the purpose of establishing eligibility for outpatient dental treatment as provided in 38 C.F.R. § 17.161. 38 C.F.R. § 3.381(a). Teeth noted as normal at entry will be service-connected if they were filled or extracted after 180 days or more of active service. 38 U.S.C. § 3.381(d)(1). Service connection is precluded for the extractions of teeth due to chronic periodontal disease within 180 days of entry. 38 U.S.C. § 3.381(g). A February 22, 1983, treatment record indicates that tooth #9 was replaced by partial and #19 was root tip. February 25, 1983, and March 1983 treatment records reveal that the Veteran received root canal therapy/filling for teeth #11 and #18. A September 1984 treatment record indicates that the Veteran was evaluated for a posterior crown for tooth 11 and maxillary full denture for teeth #8 to 10. A February 1986 treatment record indicates that the Veteran underwent a gingivectomy and received a crown for tooth #11 with Maryland bridge to teeth # 8 to 10. The record indicates that the Veteran received fillings in other teeth during service and had a root tip extraction of tooth #19 in October 1983. A June 2018 VA dental examination record reports that the Veteran did not have an oral or dental condition. The record reveals the Veteran’s history that during boot camp, he had two cavities filled and received a bridge. He reported that it failed a year later while he was at sea and he became infected and he had to have a tooth removed and redo his bridge after separation from service. The examiner noted that the Veteran had root tip #19 extracted according to dental records, which the Veteran reported as part of the failed bridge. The examiner noted that tooth #19 was extracted due to hopeless decay. The examiner found no other dental diagnosis in the record or after evaluation. The examiner added that the Veteran only had standard dental issues that were addressed during service. A September 2020 VA dental examination record reveals diagnosis of a bridge for teeth 8 to 10. The Veteran reported that he had tooth #19 removed and several fillings with a root canal of tooth 11 and bridge for teeth #8 to 10 with a subsequent bridge failure. A September 2020 VA dental opinion reports that “medical history shows military has treated his upper and lower teeth since 1983, based on file it is evident some procedures have failed and needed additional procedures and repairs.” After review of the record, the Board finds that service connection for compensation purposes is not warranted for teeth #11 or #18. VA regulation precludes the award of service connection for periodontal disease and replaceable missing teeth, and there is no evidence that the treatment of either tooth was due to loss of substance of body of maxilla or mandible due to trauma or disease such as osteomyelitis; rather, the record indicates that the treatment was due to periodontal disease. See 38 C.F.R. § 4.150. A claim for service connection for a dental disorder is also a claim for VA outpatient dental treatment. See Mays v. Brown, 5 Vet. App. 302 (1993). VA regulation provides for various categories of eligibility for VA outpatient dental treatment including but not limited to veterans having a compensable service-connected dental condition (Class I eligibility); veterans having a noncompensable service-connected dental condition, provided that they apply for treatment within a specified period after service (Class II eligibility); those having a noncompensable service-connected dental condition adjudicated as resulting from a combat wound or other service trauma (Class II(a) eligibility); those who were prisoners of war (Classes II(b) and (c)); those whose dental condition is aggravating an associated service-connected disability (Class III-”adjunct”-eligibility). 38 U.S.C. § 1712; 38 C.F.R. § 17.161. The criteria for service connection for treatment benefits have not been met; the Veteran does not meet any of the foregoing conditions. The Veteran’s dental condition is not service connected, does not aggravate a service-connected disability, and is not the result of in-service trauma, and the other criteria are not met. Consequently, service connection, for either monetary or treatment benefits, is not warranted. REASONS FOR REMAND 1. Left hand disorder A February 23, 1983, service treatment record reports a superficial laceration to the ducal tip of the second digit of the left hand across the nail. There was minimal hemorrhage and the wound edges were well approximated. Range of motion was not impaired, and full sensation was noted. The record notes that the injury was the result of slamming the door on the finger. The record indicates that the wound was cleaned and dressed, the condition was reportedly improved upon release, and the Veteran was placed on modified duty until February 27, 1983. The December 1986 separation examination record reveals normal clinical findings and negative histories. A February 2002 private treatment record reveals the Veteran’s history of left ring finger fracture. X-ray imaging showed evidence of old injury to the volar plate of the DIP joint. A June 2019 VA examination record reveals the Veteran’s history of injuring the left hand in 1985. He reported that the ship was swaying and his hand was smashed under a hatch. He reported that his hand was casted at the time of injury. He reported that the condition progressed and he developed pain and weakness. The examiner diagnosed hand sprain based on the Veteran’s history of pain to all fingers of the left hand with limitation of motion. The examiner determined that there was no objective evidence of a chronic left hand condition, noting that X-ray imaging was unremarkable. The examiner added that there was no nexus. The Board finds an addendum opinion is needed from the June 2019 VA examiner to address whether the currently diagnosed hand sprain is related to the in-service injury to the left ring finger, particularly the February 2002 postservice record which is potentially indicative of in-service fracture to the left ring finger. 2. Psychiatric disorder In July 2018, the Board determined that development should be undertaken to corroborate the Veteran’s claimed stressors. It does not appear that efforts were taken to corroborate the Veteran’s reported service in Beirut, which is the basis for his diagnoses of posttraumatic stress disorder. This must be done. The matters are REMANDED for the following action: 1. Provide the claims file to the June 2019 VA examiner (or if unavailable an appropriate medical professional). After review, the medical professional should comment on whether the left hand sprain is at least as likely as not a residual of or otherwise related to the in-service injury to the left ring finger. The examiner should provide an explanation for any comments provided, with consideration of the March 2002 medical record that reports past fracture to the left ring finger. 2. Undertake appropriate development to corroborate the in-service stressors described in the Veteran’s May 2018 statement, notably the histories of serving on land in Beirut. If the events cannot be corroborated, issue a formal finding to this effect and associate it with the record. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Snyder, 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.