Citation Nr: 21064330 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 10-16 716 DATE: October 19, 2021 REMANDED Entitlement to service connection for a lung disorder, claimed as asbestosis, is remanded. Entitlement to service connection for a dermatological condition is remanded. Entitlement to service connection for a compensable dental disability is remanded. Entitlement to service connection for a dental condition (missing upper teeth and loss of maxilla) for treatment purposes only is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1966 to March 1968. In April 2019, the Veteran appeared and presented testimony before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In August 2019, the Board remanded the issue of entitlement to an initial disability rating in excess of 10 percent for sinusitis for the issuance of a statement of the case. The Agency of Original Jurisdiction (AOJ) issued a statement of the case on October 30, 2020, and the Veteran submitted a VA Form 9 appealing the matter, with a postmark of December 14, 2020. The appeal requested an optional Board hearing, and will be the subject of a later decision after such hearing has been provided. The Board regrets any additional delay in adjudication of the above matters; unfortunately, there has not been substantial compliance with the Board's remand directives; and another remand is required. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for a lung disorder, claimed as asbestosis is remanded. In the January 2020 Remand, the Board directed that the Veteran be provided with additional examination and medical opinion. The examiner was asked to provide opinions as to whether the Veteran had asbestosis or any disability related to asbestos exposure and to specifically provide an opinion as to whether the Veteran's diagnosed calcified granuloma is related to asbestos exposure in service. The Veteran underwent examination in October 2020. The examination report documents review of the May 2008 chest X-ray and February 2011 chest CT, and states that none of this suggests that the Veteran had asbestosis, and that because there is no diagnosis of asbestosis, a nexus cannot be established. No opinion was provided as to the likelihood that the Veteran's diagnosed calcified granulomas or other lung findings were related to asbestos exposure in service. On remand, a supplemental medical opinion should be sought which complies with the prior remand directives. 2. Entitlement to service connection for a dermatological condition is remanded. In the January 2021 Remand, the Board directed that an addendum medical opinion was needed because the prior examiner did not consider the Veteran's testimony that he first saw a dermatologist in 1993. The addendum opinion was to address whether asbestos exposure is known to lead to any of the Veteran's diagnosed dermatological disabilities, and whether it is at least as likely as not that the Veteran has any skin disability that is related to his service, to include his claimed exposure to asbestos. In a March 2021, a nurse practitioner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, stating that "no nexus to asbestos exposure exists." She cited to a medical case report describing acne necrotica, generally, but did not discuss whether or not asbestos exposure is known to lead to acne necrotica or explain the basis for any such conclusion. She also reasoned that no nexus exists because no chronic skin condition was diagnosed on active duty in the available records, and there was no documented evidence of folliculitis as an early presentation of acne necrotica. Again, this opinion does not address the Veteran's lay statements of first seeking treatment for skin condition in 1993, or long history of having "chemical sores." On remand, a supplemental medical opinion should be obtained. 3. Entitlement to service connection for a dental condition (missing upper teeth) for treatment purposes only is remanded. In the January 2020 Remand, the Board noted that the Veteran is seeking service connection for the purpose of establishing eligibility for dental treatment, asserting that there is a relationship between his service-connected sinus disability and the loss of all of his upper teeth. Per 38 C.F.R. § 3.381(a), the Veterans Health Administration is the agency of original jurisdiction (AOJ) for questions of entitlement to service connection of a dental condition for treatment purposes only, and the RO should have referred the issue to VHA for an initial determination regarding eligibility under the requirements of 38 C.F.R. § 17.161. The Board remanded this matter to the RO for referral to VHA for such a determination. The RO sent correspondence requesting a determination of eligibility for dental treatment purposes under 38 C.F.R. § 17.161 to the Birmingham VA Medical Center in March 2021. In May 2021, a dental administrative officer with the VAMC responded that "The ... veteran has no information in the system that this veteran is eligible for VA Dental Care," and that they could be contacted if there were any questions. Such response is not found to represent an "initial determination regarding eligibility," as this brief statement does not include findings or reflect analysis pertaining to the specific eligibility criteria in the regulation. On remand, the issue should again be referred to VHA to render an initial determination regarding eligibility for a dental condition for treatment purposes under 38 C.F.R. § 17.161. 4. Entitlement to service connection for a compensable dental disability is remanded. The Board further notes that under 38 C.F.R. § 17.161(a), a veteran with a service-connected compensable dental disability or condition may be authorized any treatment indicated as reasonably necessary to maintain oral health and masticatory function, without any time limitation for making application for treatment. While the Veteran has affirmed that he is only seeking service connection of a dental condition in order to obtain treatment, rather than compensation, the specific rules laid out in the rating schedule for what may constitute a compensable dental disability versus a noncompensable dental condition make the question of whether he has a service connected compensable dental disability relevant to the overall question of his eligibility for VA outpatient dental treatment. As such, the Board has recharacterized the issues on appeal to allow for the most favorable and expedient review of the Veteran's claim. While the Veteran has asserted entitlement to service connection for loss of his upper teeth as secondary to service-connected sinus disability, the evidence of record indicates the loss may be due to loss of a portion of the maxilla. It is noted that loss of 25 percent or more of the maxilla qualifies as a compensable dental disability under 38 C.F.R. § 4.150, diagnostic codes 9914 and 9915. In the June 2017 Remand, the Board directed that an addendum VA medical opinion be provided as to the likelihood that surgery for the Veteran's service-connected sinusitis caused the loss of his teeth. A January 2021 Oral and Dental Conditions Disability Benefits Questionnaire indicates that the Veteran has loss of any portion of the maxilla and loss of teeth (for reasons other than periodontal disease). Under questions pertaining to the maxilla, the examiner checked "no" for whether the Veteran has lost any part of the maxilla, but "yes" for if the veteran has lost any part of the maxilla, is the loss replaceable by prosthesis. Such findings are internally inconsistent, and the question of whether the Veteran has loss of a portion of his maxilla related to his sinusitis surgery of a compensable level is pivotal to his claim seeking eligibility for outpatient dental treatment. On remand, a supplemental medical opinion should be sought on this question. The matters are REMANDED for the following action: 1. Obtain a supplemental opinion from an appropriate clinician, preferably one with specialized knowledge of pulmonology, regarding the Veteran's claim for service connection for a lung disability. If additional examination is found necessary in order to respond to the below inquiries, such should be scheduled, and the Veteran provided with sufficient notice. The clinician's attention is directed to the March 2017 VA examination report, which includes a diagnosis of calcified granuloma, bilateral lungs. The clinician is asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's calcified granuloma, bilateral lung, or any other lung disability present at any point during the relevant appeal period (February 2009 to present) arose during or is otherwise related to his military service, to include his described exposure to asbestos working on pipes and furnaces in his MOS as a Lineman. A clear rationale must be provided for any opinion or conclusion stated. A succinct discussion of the physiological effect of asbestosis on the lungs with comparison to the findings in this particular Veteran would be helpful. If the clinician is unable to render the requested opinions without resorting to speculation, the clinician must state whether there is inadequate factual information, whether the question falls beyond the knowledge of the clinician, whether the question falls beyond the scope of the medical community, or another reason. 2. Obtain a supplemental opinion from an appropriate clinician, preferably one with specialized knowledge of dermatology, regarding the Veteran's claim for service connection for a dermatological condition. If additional examination is found necessary in order to respond to the below inquiries, such should be scheduled, and the Veteran provided with sufficient notice. The clinician is asked to provide an opinion on the following questions: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed acne necrotica arose during service, or is otherwise related to his service? The clinician's attention is directed to the Veteran's lay statements and testimony that he first sought treatment for skin conditions in 1993. See April 2019 Board hearing transcript. b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed acne necrotica is related to his claimed in-service exposure to asbestos? In so answering, the clinician should discuss whether asbestos exposure is known to lead to acne necrotica. The Veteran is diagnosed with acne necrotica. He reports he first had symptoms while still in service. His treatment records show that it was diagnosed in September 2008, after he had complained of having chemical sores for years. He was counseled at that time on the chronicity of the disease. He has attributed the sores to asbestos exposure, which his physician appeared to find possible. See VA treatment records dated February 2012. The Veteran reports that he was exposed to asbestos working on pipes and furnaces in Fort Benning and Fort Gordon. His MOS was as a Lineman. A lack of documentation of symptoms or treatment is not dispositive of the question. The clinician must provide a complete explanation for all opinions. A succinct discussion of the physiological effect, if any, of asbestosis on the skin and comparison to the findings in this particular Veteran would be helpful. If the clinician is unable to render the requested opinions without resorting to speculation, the clinician must state whether there is inadequate factual information, whether the question falls beyond the knowledge of the clinician, whether the question falls beyond the scope of the medical community, or another reason. 3. Obtain a supplemental medical opinion from an appropriate clinician, preferably one with specialized knowledge of oral surgery, concerning the Veteran's claim for service connection of a dental condition. If additional examination is found necessary in order to respond to the below inquiries, such should be scheduled, and the Veteran provided with sufficient notice. The clinician must address the following: a) Identify any current dental disorders. Specifically identify whether there is loss of whole or part of the maxilla, and if so, what percentage is lost and whether or not it is replaceable by prosthesis. b) Is the Veteran's loss of his upper teeth at least as likely as not due to bone loss of the maxilla? c) For each identified dental disorder, is it at least as likely as not (50 percent or greater probability) that it is related to in-service trauma or disease? d) For each identified dental disorder, is it at least as likely as not that it is proximately caused by the Veteran's service-connected chronic sinusitis, status post reoperation right maxillary sinus? e) For each identified dental disorder, is it at least as likely as not that it is aggravated beyond its natural progression by the Veteran's service-connected chronic sinusitis, status post reoperation right maxillary sinus? The clinician's attention is directed to VA treatment records from November 1994 (pertaining to a repeat Caldwell-Luc sinus antrostomy with maxillary sinus with drainage of mucoptyalocele with maxillary antrostomy procedure) noting a history of right sinus surgery (Caldwell-Luc) in 1974 with multiple tooth extraction around 1990. A November 1994 triage note indicates total upper teeth extraction due to pain and swelling, with current pain radiating into right temporal area. A clear rationale should be given for all opinions and conclusions rendered. The opinions should address the particulars of this Veteran's medical history and the relevant medical science as applicable to this claim. If the clinician is unable to render the requested opinions without resorting to speculation, the clinician must state whether there is inadequate factual information, whether the question falls beyond the knowledge of the clinician, whether the question falls beyond the scope of the medical community, or another reason. 4. Refer the claim for service connection for a dental condition (missing upper teeth and loss of maxilla) for treatment purposes only to the appropriate VA Medical Center (VAMC) of the VHA for an initial determination/decision on whether the Veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161. If the VAMC determines that the Veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161 and requests VBA made a determination on questions such as whether the Veteran has a compensable or noncompensable service-connected dental condition or disability, whether the dental condition or disability is a result of service trauma, and whether the Veteran is totally disabled due to a service-connected disability, readjudicate the claim for service connection for a dental condition (missing upper teeth and loss of maxilla) for treatment purposes only. Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Solomon, 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.