Citation Nr: 21062580 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 18-28 032 DATE: October 8, 2021 ORDER Entitlement to service connection for a dental disorder, including a chipped tooth, for VA compensation purposes, is denied. Entitlement to service connection for left ear hearing loss is denied. Entitlement to service connection for right ear hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for residuals of a head injury, to include headaches, dizziness, vertigo, and disorientation (also claimed as Meniere's Disease) is remanded. FINDINGS OF FACT 1. The competent evidence indicates that the Veteran does not have a dental disability for which service connection for compensation may be granted. 2. The Veteran does not have a left ear hearing loss disability for VA purposes. 3. The evidence is at least in relative equipoise as to whether the Veteran's right ear hearing loss is related to his active service. 4. The evidence is at least in relative equipoise as to whether the Veteran's tinnitus is related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a dental disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.381, 4.150. 2. The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 3. The criteria for service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 4. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1974 to April 1982 and on active duty for training (ACDUTRA) from April 1983 to June 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2015 and November 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In connection with this appeal, the Veteran testified at a virtual hearing before the undersigned in April 2021. A transcript of that hearing is of record. In April 2019, the Board remanded the issues of entitlement to service connection for bilateral hearing loss and tinnitus. Specifically, the Board found that a remand was necessary to obtain any outstanding VA treatment records, and attempt to obtain the Veteran's private treatment records from his ear, nose, and throat (ENT) physician. Additional VA treatment records, dated through March 2020, were added to the Veteran's claims file, and the Veteran's private treatment records from the identified ENT physician were received. Notably, the records received from this facility were limited, and consequently, VA requested confirmation that all available records were received. The provider confirmed that all available records were submitted. Thus, the Board finds that there has been substantial compliance with regard to each of these issues. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Establishing service connection generally requires (1) evidence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Dental Disorder The Veteran contends that he is entitled to service connection for a dental injury incurred during his active service. Specifically, he reported an injury in-service in which he fell, hitting his face, resulting in a chipped tooth. Under current VA regulations, compensation is only available for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150. These conditions include various problems of the maxilla, mandible, or temporomandibular articulation, loss of whole or part of the ramus, loss of the condyloid process or coronoid process, loss of the hard palate, or loss of teeth due to loss of substance of the body of the maxilla or mandible due to trauma or disease such as osteomyelitis rather than as a result of periodontal disease. See id. Therefore, in the absence of a claim for any of these disabilities, or evidence that the Veteran has such disabilities, as is the case here, service connection for compensation purposes for a dental disorder is not warranted. See id. Here, the Veteran's service treatment records (STRs) reflect that he was seen by dental in June 1980 for a fracture of tooth #9. This record notes that no pain was present, and no emergency treatment was needed. STRs are otherwise silent for any treatment for tooth #9, any other tooth, or any other dental disorder. The Veteran was provided with a dental VA examination in March 2018. After physical examination of the Veteran, review of the claims file, and consideration of the Veteran's reported injury, the examiner indicated that the Veteran did not have an oral or dental condition, noting that there were no additional findings upon clinical and radiographic exam, no pathology to render any diagnosis, and no significant findings or symptoms. The examiner noted that while there was a "very slight incisal fracture that may or may not have been a consequence of such an injury", current evaluation of the area in question for tooth # 9 appears within normal limits with no significant findings. At his Board hearing, the Veteran testified that, on one occasion during service, he became dizzy and fell, hitting his face on a drop tank, chipping one tooth and cracking another. He asserts that he subsequently had the tooth bonded and filed down, but it was never truly returned to the pre-injury condition. Notably, however, when asked, the Veteran denied experiencing any disabling effects due to his chipped or cracked tooth. After a review of the evidence, the Board finds that the probative evidence of record precludes granting service connection for a dental condition, including as due to the June 1980 in-service injury. There is no evidence, nor does the Veteran claim, that he has any associated symptoms or functional impairment due to his tooth fracture, or that he has any problems of the maxilla, mandible, or temporomandibular articulation, loss of whole or part of the ramus, loss of the condyloid process or coronoid process, loss of the hard palate, or loss of teeth due to loss of substance of the body of the maxilla or mandible due to trauma or disease such as osteomyelitis. Although the Board acknowledges that the Veteran has a fracture on the tooth at issue, a chipped or fractured tooth, without more, does not constitute a disability for VA compensation purposes under 38 C.F.R. § 4.150. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; See also Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has a compensable dental or oral disability for which benefits are being claimed. Because the evidence does not establish that the Veteran has a current compensable dental condition during the pendency of the appeal, the Board finds that the Veteran is not entitled to service connection for a dental disorder under 38 C.F.R. § 4.150. The Board acknowledges that the Veteran's attorney has argued that the VA examination is inadequate. Additionally, the Veteran's attorney appears to also contend that VA has not satisfied its duty to assist in obtaining records. Specifically, the Veteran's attorney contends that the VA examiner did not review any records or evidence, in part because VA did not attempt to obtain the relevant records, and therefore, the assessment was not based on the relevant facts and history of the disability. Initially, with regard to the duty to assist, the Board notes that the Veteran's attorney contends that VA did not attempt to obtain dental treatment records from the Veteran or his private physician. Although the Veteran may have received treatment from a private provider for his dental treatment, neither the evidence of record nor the Veteran or his attorney has indicated that these records may provide any further evidence in support for the claim for service connection for a current dental disorder for which VA compensation is available. Moreover, neither the Veteran nor his attorney has identified the provider or the location of such treatment. The Board notes that the VA's duty to assist extends only to obtaining relevant private records that the Veteran adequately identifies, and it remains the Veteran's responsibility to provide evidence, including private treatment record, to support his claim. See 38 U.S.C. § 5103A(b)(1); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Here, the Board finds that such evidence was neither identified as providing a reasonable possibility of substantiating the claim nor was it adequately identified. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Therefore, the Board finds that VA's duty to assist has been satisfied with respect to these records. Consequently, to the extent that the Veteran's attorney asserts that the VA examination was inadequate on this basis, the Board finds this argument without merit. Nevertheless, the Veteran's attorney also asserts that the VA examiner failed to provide a sufficient rationale because the examiner did not address whether the Veteran had a current disability. Specifically, the Veteran's attorney indicates that the examiner failed to opine as to whether the Veteran's tooth fracture was in fact a consequence of the in-service injury. The Board notes that the VA examiner reviewed the Veteran's contentions regarding his in-service injury, conducted an in-person examination, and considered the evidence within the claims file and found that although the Veteran did have a slight fracture on tooth #9, there was no evidence of a current dental disability. As noted above, a tooth fracture is not a disability for which VA compensation is available, and thus, to the extent that there are any deficiencies within the rationale for the negative service connection opinion, the Board does not find that this renders the examination inadequate. In other words, because the decision herein rests on the existence of a current disability rather than the existence of a nexus to service, the Board finds that the examination and reports are adequate, such that additional examination and/or opinion is not required. Based on the foregoing, the Board finds that the preponderance of the competent and credible evidence is against a finding that the Veteran has a dental disability for which service connection may be granted. Accordingly, the claim for service connection for a dental disorder for compensation purposes is denied. 2. Hearing Loss For VA purposes, a minimum degree of hearing loss is a prerequisite for entitlement to service connection. McKinney v. McDonald, 28 Vet. App. 15 (2016). Hearing loss is a disability for VA purposes if the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is between 0 and 20 decibels and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). The Veteran claims that he has hearing loss that was caused by his military service because he was exposed to acoustic trauma and excessive noise while performing his duties. He indicated that he was a plane captain on the flight deck during service, and he was on the flight deck approximately 12 hours per day. He reports that he noticed hearing loss, worse in the right ear, during service, which has continued since service. Initially, with regard to the left ear, the Board that the Veteran does not have a current left ear hearing loss disability for VA purposes and has not had one at any time during the period on appeal. In this regard, the Board notes that a May 2015 audiological VA examination, shows pure tone thresholds, in decibels, at 500, 1000, 2000, and 4000 Hertz were as follows were as follows: -5, 5, 5, 15 and 25. Speech audiometry revealed speech recognition ability of 96 percent in the left ear. The examination report reflects normal hearing in the left ear. An April 2015 private Disability Benefits Questionnaire (DBQ) notes that the Veteran had sensorineural hearing loss but does not indicate which ear was affected. Associated treatment records reflect complaints of decreased hearing and reflect that an audiological examination was ordered. However, the audiological evaluation is not available as it was not included in the records received from the provider. A February 2019 VA treatment record also notes that the Veteran's left ear hearing was within normal limits, with word recognition noted as 96 percent. The record references a January 2019 audiological examination which shows pure tone thresholds, in decibels, at 500, 1000, 2000, and 4000 Hertz for the left ear were as follows: 5, 5, 5, and 20. Based on the foregoing, throughout the period on appeal, the Veteran has not met the auditory threshold of 40 decibels in the left ear at any frequency level or the auditory threshold for at least three frequencies at 26 decibels or greater; nor does the Veteran have speech recognition scores less than 94 percent. Thus, the Veteran has not met the criteria for a left ear hearing loss disability pursuant to 38 C.F.R. § 3.385 at any time during the period on appeal. The Board has considered the medical treatment records noting that the Veteran reported difficulty hearing in the left ear, although indicating that his right ear hearing loss was worse; however, the Board notes that the mere recitation of a Veteran's self-reported lay history does not constitute competent medical evidence of diagnosis or causality. See LeShore v. Brown, 8 Vet. App. 406 (1996). Nevertheless, despite a note of hearing loss or the possibility that he may have had difficulty hearing in his left ear, a minimum degree of hearing loss is a prerequisite for entitlement to service connection. McKinney v. McDonald, 28 Vet. App. 15 (2016). The record contains no audiological results that support a diagnosis of hearing loss for VA purposes for the left ear. See 38 C.F.R. § 3.385. To the extent that the Veteran believes that he experiences symptoms of difficulty hearing in his left ear, the Veteran is competent to testify as to readily observable symptoms such as diminished hearing. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran, as a layperson, is not competent to report that any symptoms that he currently experiences rise to the level of a "disability" for VA purposes, which requires that hearing loss reaches a certain threshold before it is considered disabling. Thus, while the Veteran may experience certain symptoms, his statements are not sufficient to establish the presence of a left ear hearing loss disability. Therefore, the Board finds that the criteria for service connection for left ear hearing loss have not been met. Because the Veteran does not have left ear hearing loss for VA purposes, the Board need not conduct any further analysis regarding in-service occurrence or a nexus, and the Veteran's appeal on the issue of entitlement to service connection for left ear hearing loss must be denied. See Romanowsky, 26 Vet. App. at 293; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (holding that where no disability exists, no further analysis is required); Gilbert v. Derwinski, 1 Vet. App. 53, 49 (1990); 38 C.F.R.§§ 3.102, 3.303(a), 3.307(a)(3), 3.309(a), 3.385. Regarding the Veteran's right ear, however, the Board finds that the evidence is at least in relative equipoise as to whether his right ear hearing loss is etiologically related to active service. The Veteran's March 1979 audiological examination notes that puretone thresholds for the Veteran's right ear, in decibels, at 500, 1000, 2000, and 4000 Hertz were as follows: 0, 0, 0, and 0. A February 1982 separation audiological examination notes that puretone thresholds for the Veteran's right ear, in decibels, at 500, 1000, 2000, and 4000 Hertz were as follows: 20, 10, 10, and 25. Service records reflect that the Veteran did indeed spend time on the flight line. A June 1983 audiological examination at his separation from ACDUTRA service notes that puretone thresholds for the Veteran's right ear, in decibels, at 500, 1000, 2000, and 4000 Hertz were as follows: 0, 5, 0, and 0. As previously noted, a private April 2015 DBQ notes a diagnosis of sensorineural hearing loss, without indicating which ear was affected. The associated treatment records note that the Veteran had a history of noise exposure during his military service working on the flight deck of an aircraft carrier. The May 2015 audiological VA examination shows pure tone thresholds, in decibels, at 500, 1000, 2000, and 4000 Hertz for the right ear were as follows: 0, 0, 0, and 60. Speech audiometry revealed speech recognition ability of 100 percent in the right ear. The examination report right ear sensorineural hearing loss. The examiner indicated that although a "noise notch" configuration of hearing loss was documented on the current audiogram, the Veteran's hearing at both enlistment and separation was normal from 500-6000Hz, with no significant change in hearing during that time, which means that there is no objective evidence of auditory noise injury while in service. Also, hearing loss due to noise exposure generally affects both ears congruently, whereas the Veteran's hearing shows significant asymmetry, with the right ear being worse than the left. The Veteran reported that he first sought audiologic care, in the private sector, 11 years ago; 22 years after his separation from service. According to the consensus report from the Institute of Medicine, titled "Noise and Military Service: Implications for Hearing Loss and Tinnitus" (2006), there is not sufficient evidence from longitudinal studies in laboratory animals or humans for concluding that permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure. Although the definitive studies to address this issue have not been performed, based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur. Therefore, the examiner opined that it was less likely than not that the Veteran's right ear hearing loss was caused by or a result of an event in military service. A January 2019 VA audiological examination shows pure tone thresholds, in decibels, at 500, 1000, 2000, and 4000 Hertz for the right ear were as follows: 5, 10, 5, and 55. The record notes that the Veteran reported that he had hearing loss for about 20 years and that he did not have any post-service occupational noise exposure. A December 2020 statement from the Veteran's treating ENT provider notes that the Veteran had a history of loud noise exposure during his military service, which included time on the flight deck of an aircraft carrier. The provider noted review of the Veteran's medical records and indicated that the Veteran entered active service with normal hearing and subsequent to his discharge had already suffered from sensorineural hearing loss. Since his discharge, his hearing loss had worsened. The provider opined that it was more likely than not that his symptoms are related to his noise exposure during his military service. After carefully reviewing and weighing the competent evidence of record, the Board is satisfied that the evidence is at least in approximate balance as to whether the Veteran's current right ear hearing loss is related to service. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, the Veteran has a current right ear hearing loss disability as demonstrated by his VA audiology examination reports. The Veteran exceeded the auditory threshold of 40 decibels in the right ear at 4000 Hz. These audiogram results show that the Veteran met the criteria for right ear hearing loss pursuant to 38 C.F.R. § 3.385. Additionally, the evidence of record reflects in-service noise exposure due to his MOS which required working on the flight deck. Regarding a nexus, given the conflicting medical opinions of record, together with the Veteran's competent and credible reports of difficulty hearing since his separation from service, the Board finds the evidence is at least in equipoise as to whether Veteran's right ear hearing loss is related to his active service. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Both opinions appear to be based on a review of the Veteran's medical records, including his STRs, and consideration of his in-service noise exposure; however, the clinicians' opinions differed as to whether the Veteran experienced a hearing threshold shift during service, which appears to be the basis for the contrary nexus opinions. In this regard, the Board finds it notable that the Veteran's active-duty separation audiology examination does in fact appear to reflect a hearing threshold shift; however, his ACDUTRA audiology examination appears to suggest improvement in his right ear hearing. Nevertheless, as neither opinion identified the specific audiology results relied upon, the Board is unable to afford greater probative value to one opinion over the other. Accordingly, resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for right ear hearing loss is warranted. 3. Tinnitus Because tinnitus is largely "subjective," its existence is generally determined by whether or not the appellant claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran claims that he has been suffering from tinnitus as a result of in-service noise exposure since his active service. A May 2015 VA examination notes that the Veteran reported experiencing longstanding tinnitus, described as a constant ringing in his right ear, since his military service. The examiner opined that the Veteran has a diagnosis of clinical hearing loss, and his tinnitus is at least as likely as not a symptom associated with the hearing loss, as tinnitus is known to be a symptom associated with hearing loss. The examiner additionally opined that the Veteran's tinnitus was less likely than not caused by or a result of military noise exposure because, as previously indicated in the right ear hearing loss opinion, there is no objective evidence of auditory noise injury during service. A July 2015 private DBQ notes that the Veteran has tinnitus. An associated April 2015 medical treatment record notes that the Veteran reported ringing in his ears; he had a history of noise exposure during his military service working on the flight deck of an aircraft carrier. As noted above, a December 2020 statement from the Veteran's treating ENT provider notes that the Veteran had a history of loud noise exposure during his military service, which included time on the flight deck of an aircraft carrier. The provider noted review of the Veteran's medical records and indicated that the Veteran entered active service with normal hearing and subsequent to his discharge had already suffered from sensorineural hearing loss. Since his discharge, his hearing loss had worsened and he developed additional symptoms, including tinnitus. The provider opined that it was more likely than not that his symptoms are related to his noise exposure during his military service. After carefully reviewing and weighing the competent evidence of record, the Board is satisfied that the evidence is at least in approximate balance as to whether the Veteran's tinnitus is related to service. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The unfavorable evidence in this case consists of the lack of treatment records for tinnitus during his active service and the May 2015 VA examiner's negative direct service connection opinion. The record contains favorable evidence in the form of the Veteran's competent description of a ringing in his ears, which he reports began during his period of active service and has continued since. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Given the nature of tinnitus, the Veteran is uniquely situated to competently identify and report on its onset and duration. Here, the Board finds his assertion that the tinnitus began during his active service is both competent and credible, and thus is positive evidence that supports a finding of nexus in this case. Moreover, the Veteran's private treating ENT provider indicated that his tinnitus was related to his noise exposure during active service. For these reasons, the Board resolves reasonable doubt in favor of the Veteran and grants service connection for tinnitus. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As the Board finds that the criteria for direct service connection of the Veteran's tinnitus have been met, to the extent that the medical evidence suggests that his tinnitus is secondary to his hearing loss, further analysis addressing secondary service-connection is not necessary. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). REASONS FOR REMAND 4. Residuals of a Head Injury The Veteran asserts that service connection is warranted for headaches, dizziness, vertigo, and disorientation, to include as due to a head injury. In this regard, the Veteran has indicated that the same June 1980 fall that resulted in his dental injury discussed above, resulted in a head injury and he has experienced residuals since that time. As previously indicated, the Veteran's STRs indicate that the Veteran was seen for an injury that resulted in a fractured tooth in June 1980. Furthermore, STRs reflect complaints of dizziness, including a diagnosis of possible positional vertigo, in a February 1982 service treatment record. An April 2015 private treatment record notes that the Veteran had some occasional dizziness/lightheadedness. In a November 2015 statement from the Veteran, the Veteran indicated that he had headaches. At his April 2021 Board hearing, the Veteran testified that he experienced dizziness and disorientation at least one time per month during service, and he has continued to experience dizziness, disorientation, and headaches since his head injury during active service. The Veteran has not yet been afforded a VA examination in connection with this issue. As the record is unclear regarding whether the Veteran has a current disability of TBI or residuals of a head injury, remand for a VA examination is required to determine whether the Veteran has a current disability associated with the reported in-service head injury. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board points out, however, that, by this remand, the Board makes no determination, expressed or implied, as to the credibility of any statements on file. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to determine whether he has a current head injury/TBI, or any current residuals of a past head injury, that is etiologically related to his active service. The electronic claims file must be made accessible to the examiner for review, and such review should be noted in the examination report. All necessary tests and studies should be performed. All clinical findings must be reported in detail and correlated to a specific diagnosis. (a.) The examiner must provide an opinion, in light of the examination findings and the service and post-service medical evidence of record, addressing whether the Veteran has any diagnosis of TBI/head injury or TBI/head injury residuals. (b.) If there is a diagnosis of TBI/head injury or TBI/head injury residuals, provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) caused by or related to an event, disease, or injury in service. (c.) For any other diagnosis associated with his claimed headaches, dizziness, vertigo, and disorientation, other than TBI/head injury or TBI/head injury residuals, then the examiner is asked to provide an opinion regarding whether each identified disorder is at least as likely as not (50 percent or greater probability) caused by or related to an event, disease, or injury in service. (d.) The examiner must provide reasons for each opinion expressed with consideration given to all evidence of record, including medical treatment records and the Veteran's lay statements indicating the presence of headaches, dizziness, and disorientation. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Hite, Associate 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.