Citation Nr: 21003207 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 15-05 500 DATE: January 19, 2021 ORDER Service connection for a right eye disorder is denied. Service connection for a bilateral hearing loss disability is denied. Service connection for headaches is denied. Service connection for a jaw disorder is denied. Service connection for a dental disorder is denied. Service connection for a right ankle disorder is denied. Service connection for a traumatic brain injury (TBI) is denied. FINDINGS OF FACT 1. The Veteran has presented no probative evidence of a current right eye disorder. 2. A bilateral hearing loss disability is not attributable to noise exposure incurred in service. 3. The Veteran’s current chronic headache disorder did not have its onset due to injury sustained in service and was not caused or aggravated by a service-connected disability. 4. The Veteran has presented no credible evidence of a current jaw disorder. 5. The Veteran does not have a current dental disability for which VA compensation benefits can be awarded. 6. The Veteran’s current right ankle pain did not have its onset due to injury sustained in service. 7. The Veteran has presented no credible evidence of a current TBI. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a right eye disorder have not been met. 38 U.S.C. §§ 1131, 1154 (2012); 38 C.F.R. §§ 3.102, 3.303 2. The criteria to establish service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. 3. The criteria to establish service connection for headaches have not been met. 38 U.S.C. §§ 1131, 1154 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria to establish service connection for a jaw disorder have not been met. 38 U.S.C. §§ 1131, 1154 (2012); 38 C.F.R. §§ 3.102, 3.303. 5. The criteria to establish service connection for a dental disorder have not been met. 38 U.S.C. §§ 1131, 1154 (2012); 38 C.F.R. §§ 3.102, 3.303. 6. The criteria to establish service connection for a right ankle disorder have not been met. 38 U.S.C. §§ 1131, 1154 (2012); 38 C.F.R. §§ 3.102, 3.303. 7. The criteria to establish service connection for a TBI have not been met. 38 U.S.C. §§ 1131, 1154 (2012); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1979 to February 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision issued by the RO. The Veteran testified before the undersigned Veterans Law Judge at the RO in June 2018. A transcript of the hearing is associated with the claims file. The Board remanded the appeal in August 2019 for the RO to contact the appropriate records custodian and attempt to obtain the Veteran’s service personnel and service medal records from his period of Reserve service. The RO tried to obtain these records from the Veteran’s period of Reserve service and documented the efforts undertaken to obtain these records in an August 2020 letter. Accordingly, the requested development has been obtained and the claim is returned to the Board for appellate disposition. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is also warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b); see also Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). The Veteran’s service treatment records of his period of Active Duty service or Reserve service are not available for review. In such cases, VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the doubt rule. See Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). 1. Entitlement to service connection for a right eye disorder and a TBI The Veteran contends that he sustained a head injury during service in a fall from a helicopter that led to the onset of his claimed right eye disorder and TBI. He also asserted that he was injured by electric shock during a training exercise and sustained an injury to his right eye. Despite his contentions and assertions, the probative evidence of record after his period of service does not document any current right eye disorder or a TBI. The claims of service connection for a right eye disorder and TBI must be denied. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. §§ 1110, 1131. Here, the Veteran has presented no evidence of, nor does probative evidence show that the Veteran has current right eye or TBI disabilities. Thus, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). The Veteran was not afforded specific VA eye or TBI examinations. On the facts of this case, however, examinations are not needed. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the claims do not meet these requirements for obtaining a VA medical opinion. Because the weight of the evidence shows no current right eye disorder or TBI, no examinations are needed. 2. Entitlement to service connection for a bilateral hearing loss disability Specific to claims of service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran asserts that noise exposure in service caused a bilateral hearing loss disability. The absence of in-service evidence of hearing loss disability is not fatal to the claim, see Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of section 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In November 2014, the Veteran underwent a VA audiological examination which showed that his puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 20 15 25 LEFT 60 55 60 50 70 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 32 percent in the left ear. The audiologist explained that the puretone test results were not valid for rating purposes because the Veteran was very inconsistent during the evaluation. The audiologist noted that the Veteran was re-instructed several times with no improvement in consistent responses. The audiologist explained that a diagnostic test (Stenger) was completed at all frequencies where there was a 20 decibel or greater difference between the ears, and it was positive at all frequencies tested. The audiologist also noted that the use of word recognition scores was not appropriate for this Veteran because of language difficulties, cognitive problems and inconsistent word recognition scores that make combined use of puretone average and word recognition scores inappropriate. The audiologist concluded that a medical opinion regarding the etiology of the Veteran’s bilateral sensorineural hearing loss could not be determined without resorting to speculation because the service treatment records were unavailable for review. However, the audiologist explained current science indicated that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure was extremely unlikely. The audiologist determined that given the inconsistencies during the evaluation, the Veteran’s current level of hearing loss could not be determined. The audiologist acknowledged that if the service treatment records were found and the Veteran was willing to provide a valid hearing test, a decision could be made based on that information. Though the Veteran has current bilateral sensorineural hearing loss, the preponderance of the evidence is against a finding of a linkage between the onset of the hearing loss and a period of service. Rather, the evidence shows that puretone test results on examination (November 2014 VA examination) were not valid for rating purposes because the Veteran was very inconsistent during the evaluation (and he was re-instructed several times with no improvement in consistent responses). In addition, the use of word recognition scores was not appropriate for the Veteran because of language difficulties, cognitive problems and inconsistent word recognition scores that make combined use of puretone average and word recognition scores inappropriate. The audiologist explained that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure was extremely unlikely and determined that given the inconsistencies during the evaluation, the Veteran’s current level of hearing loss could not be determined. The audiologist acknowledged that if the service treatment records were found and the Veteran was willing to provide a valid hearing test, a decision could be made based on that information. Given the Veteran’s inability to cooperate with VA to obtain a valid examination, further effort to assist the Veteran will not be undertaken. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (“the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.”). There is no competent or credible evidence or opinion that suggests that there exists a medical relationship, or nexus, between any current sensorineural hearing loss and a period of the Veteran’s service. Additionally, there is no evidence of sensorineural hearing loss disability in service. To determine that a chronic disease was shown in service, the disease identity must be established. 38 C.F.R. § 3.303(b); Walker, 708 F.3d at 1339. No examiner in service, or since, has established chronicity or an underlying chronic disease process in service. In sum, characteristic manifestations sufficient to identify the disease (other organic disease of the nervous system) entity were not noted. Further, there is no demonstration of continuity of symptomatology or evidence of sensorineural hearing loss disability within one year of separation from service. Thus, service connection cannot be awarded on a presumptive basis. 38 U.S.C. § 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303(b), 3.307, 3.309. 3. Entitlement to service connection for headaches, to include claimed secondary to a dental disorder and jaw disorder The Veteran contends that he sustained a head injury during his period of service in a fall from a helicopter that led to the onset of his claimed headaches. After service, a February 2014 VA treatment record documents the Veteran report that he sustained a head injury in service in 1979 and continues to experience headaches since that injury. He complained that he had chronic headaches. On examination, the impression was headaches. A June 2014 VA treatment record documents the Veteran’s complaint of monthly, sudden head pain related to his head injury sustained in 1979. On examination, the impression was head pain. An April 2015 VA treatment record reflects chronic post-traumatic headaches. A December 2015 VA treatment record documents computerized list of active problems, including in pertinent part, chronic headache disorder. Though the Veteran has a chronic headache disorder, the preponderance of the evidence is against a finding of a linkage between the onset of the current headaches disorder and a period of service. Rather, the first sign of headache disorder after service was the February 2014 VA treatment record which documents the Veteran’s complaint chronic headaches, approximately 31 years after his discharge from service. See Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service resulting in any chronic or persistent disability). As service connection has not been established for a dental disorder or jaw disorder, service for headaches is not warranted on a secondary basis. 38 C.F.R. § 3.310. The Veteran was not afforded a specific VA headaches examination. On the facts of this case, however, an examination is not required. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the claim does not meet these requirements for obtaining a VA medical opinion. Because the weight of the evidence does not show that the current headache disorder onset due to injury sustained during a period of service, no examination is needed. 4. Entitlement to service connection for a dental disorder and a jaw disorder The Veteran contends that his claimed dental disorder and jaw disorder was caused by the fall from the helicopter, as above. An October 1980 service treatment records reflect that the Veteran sustained trauma to the anterior teeth numbers 7, 8, 9, 10 and remaining lower anterior teeth. After service, the January 1999 rating decision reflect that the Veteran receives VA dental treatment under Class II. See 38 C.F.R. § 17.161(c). The September 2014 Report of VA Dental and Oral Conditions examination documents that a May 1979 service dental record showed serious periodontal issues and abscessed teeth numbers 7, 8, 9, and 26. Pulpotomies were performed for teeth numbers 7, 8, 9, 24 and 25. In a June 1979 service dental record, it was determined that tooth number 24 was non-restorable and symptomatic again and the tooth was extracted. Additional periodontal abscesses were identified at teeth numbers 18 and 19. In September 1979, the Veteran had a periodontal prophylaxis and examination which documented poor oral hygiene, serious periodontal concerns and abscessed teeth numbers 7, 8, 9 and 26. An October 1980 service dental record showed that the Veteran received emergent care for pain and symptoms of tooth number 7. At that time, the Veteran reported being struck in the face approximately one year earlier. Pulpotomy was performed for tooth number 7. The examiner concluded that it was apparent from the service dental treatment records that the Veteran entered service with a severely compromised and broken-down dentition. The examiner noted that the Veteran did not share this history of trauma at his numerous emergent and first examination appointments. Immediate upper and lower partials were delivered to the Veteran in October 1980 to replace teeth numbers 3, 7, 8, 9, 14, 23 and 26 and it was documented that he had advanced periodontal issues and external resorption with many of the abscessed, non-restorable teeth which could represent a history of trauma or long standing periodontal/endodontic infections. The examiner determined that given the extent of caries and severe periodontal compromise and poor hygiene it would be more likely than not that the loss of the teeth and subsequent bone loss was more likely than not due to periodontal issues and severe caries which may have been exacerbated or aggravated by a blow to his face. However, the examiner opined that the claimed dental disorder was less likely than not incurred in or caused by the claimed in-service injury, event or illness. There was no documented anatomical loss or bony injury of the mandible (not due to edentulous atrophy or periodontal disease); anatomical loss or bony injury of the maxilla (not due to edentulous atrophy or periodontal disease); anatomical loss or bony injury leading to loss of teeth (other than that due to the loss of the alveolar process as a result of periodontal disease); anatomical loss or injury of the mouth, lips tongue and disfiguring scars; osteomyelitis/osteoradionecrosis/bisphosphonate-related osteonecrosis of the jaw; tumors and neoplasms; or, other pertinent physical findings, scars, complications, conditions, signs and/or symptoms. In the September 2014 VA examination addendum, the dentist clarified that the evidence more than likely supports loss of anterior teeth due to advanced caries and periodontal disease issues. The evidence reflects that the Veteran is missing teeth numbers 3, 7, 8, 9, 14, 23, 24, 25 and 26 and has advanced caries and periodontal disease issues. However, the Veteran has upper and lower partials which indicates that his missing teeth are replaceable. Replaceable missing teeth, carious teeth and periodontal disease are not compensable disabilities. 38 C.F.R. § 3.381(b). Thus, service connection for the claimed dental disorder for purposes of compensation is not warranted. The Board notes that even if the Veteran’s missing teeth were not replaceable, service connection still would not be warranted. Missing teeth are not considered a disability by VA unless the tooth loss is due to loss of substance of the body of the maxilla or mandible caused by trauma or disease such as osteomyelitis. 38 C.F.R. § 4.150, Diagnostic Code 9913. Loss of the alveolar process because of periodontal disease is not considered disabling. Id. In this case there is no medical or lay evidence reflecting loss of substance of the body of the maxilla or mandible, or that tooth loss occurred because of injury or disease such as osteomyelitis. In the September 2014 Report of VA examination, there was no documented anatomical loss or bony injury of the mandible (not due to edentulous atrophy or periodontal disease); anatomical loss or bony injury of the maxilla (not due to edentulous atrophy or periodontal disease); anatomical loss or bony injury leading to loss of teeth (other than that due to the loss of the alveolar process as a result of periodontal disease); anatomical loss or injury of the mouth, lips tongue and disfiguring scars; osteomyelitis/osteoradionecrosis/bisphosphonate-related osteonecrosis of the jaw; tumors and neoplasms; or, other pertinent physical findings, scars, complications, conditions, signs and/or symptoms. The Board notes that VA’s Office of General Counsel has held that dental treatment of teeth during service, to include extractions, does not constitute dental trauma. See VAOPGCPREC 5-97 (1997), 62 Fed. Reg. 15, 566 (1997). In short, the Veteran does not have a current dental disability for purposes of VA compensation, and there is no legal entitlement to service connection for a dental disorder except for the purpose of VA outpatient dental treatment and the Veteran is already receiving this benefit. As such, the claim must be denied. In addition, the probative evidence of record after his period of service does not document any current jaw disorder. Thus, the claim of service connection for a jaw disorder must be denied also. Here, the Veteran has presented no evidence of, nor does probative evidence show that the Veteran has a current jaw disorder. Thus, there can be no valid claim for service connection. See 38 U.S.C. §§ 1110, 1131;Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). 5. Entitlement to service connection for a right ankle disorder The Veteran also alleges that he has a right ankle disorder that resulted from the fall from a helicopter. After service, a July 2014 VA treatment record documents the Veteran’s complaint of chronic ankle pain. A February 2015 VA treatment record documents the Veteran’s reported medical history of ankle pain due to service injury. A December 2015 VA treatment record documents the Veteran’s complaint that he has experienced numbness around the lateral malleolus of the right ankle since 1979. Though the Veteran has right ankle pain, the preponderance of the evidence is against a finding of a linkage between the onset of disability manifested by right ankle pain and a period of service. Rather, the first sign of disability manifested by right ankle pain after service was the July 2014 VA treatment record which documents the Veteran’s complaint chronic ankle pain, approximately 31 years after his discharge from service. See Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service resulting in any chronic or persistent disability). The Veteran was not afforded a specific VA ankle joint examination. On the facts of this case, however, an examination is not needed. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the claim does not meet these requirements for obtaining a VA medical opinion. Because the weight of the evidence does not show that the current disability manifested by right ankle pain onset due to injury sustained during a period of service, no examination is needed. The Veteran is competent to report he sustained injury/head injury during his period of service in a fall out of a helicopter but he is not competent to link his claimed right eye, bilateral hearing loss, headaches, jaw disorder, dental disorder, right ankle disorder or a TBI to service or a service-connected disability. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran’s death). The Veteran is competent to state that he had an incident in service that may be reported by any other non-medically trained layperson. However, he is not competent to establish that he has current right eye disorder, jaw disorder, dental disorder or TBI or that his current bilateral hearing loss, headaches or right ankle disorder onset as a result of any in-service injury or service-connected disability (headaches). The Veteran is not competent to diagnose or offer opinion as to etiology of any current right eye disorder, bilateral hearing loss, headaches, jaw disorder, dental disorder, right ankle disorder or TBI. The question regarding the etiology of such disabilities is a complex medical issue that cannot to be addressed by a layperson. For these reasons, his allegations are non-specific and are no more than conjecture and do not rise to the type of evidence addressed by Jandreau. (Continued on the next page)   The claims of entitlement to service connection for a right eye disorder, bilateral hearing loss, headaches, jaw disorder, dental disorder, right ankle disorder or TBI must be denied. The preponderance of the evidence is against the claims and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Jackson 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.