Citation Nr: 21065997 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 18-46 873 DATE: October 28, 2021 ORDER Entitlement to service connection for a dental disability for compensation purposes is denied. REMANDED Entitlement to service connection for a bilateral eye disability is remanded. FINDING OF FACT The Veteran does not have a dental disability for which service-connected compensation is payable. CONCLUSION OF LAW Entitlement to service connection for a dental disability is not warranted. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.381, 4.150, 17.161. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1966 to November 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in February 2015 by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the issues on appeal for additional development in June 2019, and the requested opinions were obtained in November 2019. As such, the directives have been substantially complied with and the matter is again properly before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in October 2018. A transcript of the hearing is of record. 1. Entitlement to service connection for a dental disability Generally, to establish service connection a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 133637 (Fed. Cir. 2006). Disability compensation and VA outpatient dental treatment may be provided only for certain specified types of service-connected dental disorders. For other types of service-connected dental disorders, the claimant may receive treatment only and not compensation. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150, 17.161. Dental disabilities that may be awarded compensable disability ratings are set forth under 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. These disabilities include chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss of the mandible, nonunion or malunion of the mandible, loss of the maxilla, nonunion or malunion of the maxilla, limited temporomandibular motion, loss of the ramus, loss of the condyloid or coronoid processes, loss of the hard palate, loss of teeth due to the loss of substance of the body of the maxilla or mandible and where the lost masticatory surface cannot be restored by suitable prosthesis, when the bone loss is a result of trauma or disease but not the result of periodontal disease. 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are to be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment. 38 C.F.R. §§ 3.381, 17.161. To date, the RO has only adjudicated, and the Veteran has only argued, entitlement to service connection for a dental disability for compensation purposes. As such, the Board will only address the issue of entitlement to service connection for a dental disability for compensation purposes. In this case, it is uncontroverted that the Veteran is currently diagnosed with numerous missing teeth. However, there is no evidence that the Veteran's missing teeth are due to the loss of bone or substance of the mandible, as is required in order for service connection for compensation purposes to be granted for a dental disability. Further, there is no evidence that the Veteran's missing teeth are not replaceable. The Veteran was provided with a VA dental examination in February 2015. The examiner noted that the Veteran had missing teeth, but stated that there was no evidence of any other oral or dental disabilities, including any disabilities affecting the mandible or maxilla specifically. The examiner further noted that x-ray imaging conducted at the time of the examination showed only that teeth 1, 2, 3, 14, 15, 16, 17, 18, 19, 20, 30, and 31 were missing and that the Veteran had moderate periodontal disease. The examiner then stated that no other issues were present on x-ray. There is no evidence that the examiner was either not competent or credible, and the examiner's assessment was based both on an objective examination and x-ray imaging taken at the time. As such, the Board finds that the examination report is entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). While the Veteran has asserted that in-service exposure to non-ionizing radiation resulted in his loss of teeth, as noted in order to be eligible for compensation there must be missing teeth due to loss of substance of the body of the maxilla or mandible. To the extent that the Veteran has attempted to argue that he does have loss of substance of the body of the maxilla or mandible due to radiation exposure, these statements are not competent as to provide such an opinion requires medical training and knowledge that is beyond that which may be expected of a lay person as well as objective imaging results. Jandreau, 492 F.3d 1372; Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Therefore, these assertions are entitled to no weight. Treatment records are further silent for any indication that the Veteran's loss of teeth was attributable to loss of substance of the body of the maxilla or mandible, or a diagnosis of any other dental disability for which VA disability compensation may be awarded. Ultimately, the preponderance of the evidence is against a finding that the Veteran has any current dental disability for which compensation is payable. 38 C.F.R. § 4.150. The VA examiner noted that the loss of teeth was not due to a loss of substance of the body of the maxilla or mandible, and based this opinion on an examination of the Veteran and x-ray images taken at the time. The examiner further did not diagnose any other disability other than missing teeth. None of the other evidence indicates that the missing teeth are due to loss of substance of the maxilla or mandible or provides a diagnosis of a compensable dental disability. The Board notes that VA attempted to obtain opinions concerning the etiology of the Veteran's claimed dental disability in February 2015 and November 2019, and that the Veteran has submitted some articles concerning adverse health effects of non-ionizing radiation exposure. Further, the Board notes that an August 2011 VA emergency triage note indicated that the Veteran's broken teeth may possibly be due to radiation exposure. However, as the evidence of record does not reflect that the Veteran has a dental disability for which compensation may be paid, the Board need not address the opinions of record. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Based on the foregoing, the Board concludes that there is no basis under the law for the award of service-connected VA disability compensation for a current dental disability, as there is simply no evidence that the Veteran has a dental disability falling under the categories of compensable dental conditions. Id. When, as here, the law is dispositive of the claim, it should be denied because of lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 42930 (1994). For these reasons, the claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral eye disability. The Board remanded the issue of entitlement to service connection for a bilateral eye disability for a new opinion in June 2019. In the June 2019 remand the Board determined that the prior February 2015 opinion was inadequate as it stated that there was limited or no evidence that non-ionizing radiation may result in the development of cataracts, despite the fact that the Veteran had submitted an abstract from an article indicating that there may be a link between exposure to microwaves and cataracts. While the examiner in the opinion referenced some articles, the abstract submitted by the Veteran was not discussed. An addendum opinion was obtained in November 2019. However, the examiner simply stated that there was no evidence that would warrant a change in the February 2015 opinion, and then restated the February 2015 opinion and rationale verbatim. Ultimately, then, the November 2019 opinion contains the same flaw previously highlighted in the June 2019 Board remand, in that it states that there is limited or no evidence that non-ionizing radiation may cause cataracts despite the fact that the Veteran submitted an abstract from an article discussing a causal relationship between such exposure and the development of cataracts. Dalton v. Peake, 21 Vet. App. 23 (2007). Therefore, a remand for a new opinion is required. The matters are REMANDED for the following action: 1. Obtain a medical opinion concerning the etiology of the Veteran's bilateral cataracts. The examiner should answer the following: Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's eye disability, diagnosed as bilateral cataracts, is causally related to the Veteran's active service, to include exposure to non-ionizing radiation? Attention is invited to: (1) the Veteran's testimony concerning his radiation exposure (labelled "Hearing Transcript" uploaded 10/22/18); (2) an abstract of an article discussing a possible link between microwaves and ionizing radiation and the development of cataracts (labelled "Correspondence" uploaded 7/23/14); and, (3) an internet article discussing cataracts caused by radiation (labelled "Web / HTML Documents" uploaded 7/23/14). A detailed rationale for the opinion must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. Jones v. Shinseki, 23 Vet. App. 382 (2010). LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Wendell, 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.