Citation Nr: 21067118 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 18-51 191 DATE: November 3, 2021 ORDER Entitlement to service connection for a dental disability, to include occlusion and a jaw disability, is denied. Entitlement to service connection for a right-hand disability is denied. Entitlement to service connection for a left-hand disability is denied. Entitlement to service connection for a right upper extremity disability is denied. REMANDED Entitlement to service connection for a skin disability other than eczema is remanded. FINDINGS OF FACT 1. The Veteran does not have a dental disability for which VA disability compensation is authorized. 2. The preponderance of the evidence is against finding that right-hand disability began during active service or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that left-hand disability began during active service or is otherwise related to an in-service injury or disease. 4. The preponderance of the evidence is against finding that right upper extremity disability began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a dental disorder for purposes of VA compensation have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.381, 4.150, 17.161. 2. The criteria for service connection for a right-hand disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a left-hand disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a right upper extremity disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1976 until his honorable discharge in September 1980. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.902(c). These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision for the bilateral hand and right upper extremity disabilities and an October 2016 rating decision for the dental and skin disabilities of the Regional Office of the Department of Veterans Affairs (VA). In June 2018 and January 2019, the Veteran testified before a Veterans Law Judge at videoconferences. Transcripts of his testimony have been associated with the claims file. In July 2020, the Board remanded the case to the Regional Office for further development. Specifically, the Board directed the Regional Office to obtain addendum VA examinations. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, 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 the so-called "nexus" requirement. Holton v Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Furthermore, in deciding whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (2014); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. Id. Dental Disability Dental disorders are treated differently than other medical disorders in the VA benefits system. See 38 C.F.R. § 3.381. Disability compensation may be provided for certain specified types of service-connected dental disorders. For other types of service-connected dental disorders, the claimant may receive VA dental 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. These disabilities include chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, complete loss or loss of half 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, and loss of teeth due to the loss of substance of the body of the maxilla or mandible without loss of continuity. 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. Compensation is only available for loss of teeth where the lost masticatory surface cannot be restored by suitable prosthesis, if such is due to loss of substance of body of maxilla or mandible, but only if such bone loss is due to trauma or osteomyelitis, and not to the loss of the alveolar process as a result of periodontal disease, as such loss is not considered disabling. See 38 C.F.R. § 4.150, Diagnostic Code 9913. Under 38 C.F.R. § 3.381, 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 as provided in 38 C.F.R. § 17.161. 1. Entitlement to service connection for a dental disability, to include occlusion and a jaw disability. The Veteran asserts that he has residual injuries from an incident in service where he injured the front of his mouth, and that he developed respiratory problems due to occlusion. See September and November 2011 Statements in Support of Claim. An April 2013 rating decision found that "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 only." That same decision denied service connection compensation. The Veteran later petitioned to reopen his claim which was granted by the Board in the July 2020 decision. The Veteran asserts that he fell during service and injured his mouth and teeth which led to an infection. See August 2015 Notice of Disagreement. He asserts that the infection spread causing residual disabilities in other areas. However, the Veteran has not described in detail what he is claiming as his "dental disability." The Board will take an expansive view of the claim. His December 1975 entrance examination was positive for severe tooth or gum trouble for a "bad molar." A February 1976 dental assessment on entry was negative. The service treatment records document routine examinations and repairs to various teeth. At the August 1980 separation examination, no abnormalities involving the mouth were noted. The separation examiner noted there were no severe tooth or gum complaints at that time. The Veteran did not report any pertinent complaints on the accompanying Report of Medical History. Post service, the record indicates that the Veteran had missing teeth but did not note loss of substance of body of maxilla or mandible. Furthermore, his teeth were either missing before service or were extracted after service. The Board will now address the various dental issues in turn. In determining service connection, the condition of teeth and periodontal tissues at the time of entry into active duty will be considered. Treatment during service, including filling or extraction of a tooth, or placement of a prosthesis, will not be considered evidence of aggravation of a condition that was noted at entry, unless additional pathology developed after 180 days or more of active service. 38 C.F.R. § 3.381(d) Although carious teeth and other periodontal disease was present in service, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not compensable disabilities. 38 C.F.R. § 3.381(b). 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 C.F.R. § 3.381(e)(1). The Veteran entered service on January 26, 1976 and so 180 days after entry would be any treatment after July 24, 1976. Although the Veteran had dental issues in service, none of those issues rise to the level of compensable disabilities. In May 1977, after the 180-day period, his number 8 tooth was extracted and then later remade during service. See Service Dental Treatment Records. As this tooth was replaced it is not a compensable disability. See 38 C.F.R. § 3.381(b). Furthermore, teeth noted as missing at entry will not be service connected, regardless of treatment during service. 38 C.F.R. § 3.381(e)(6). At entrance, the Veteran was missing teeth numbered 14, 19, and 30. He also has current caries and non-restorable teeth and was diagnosed with bruxism. See August 2021 VA Examination. Unfortunately, bruxism, current caries, and non-restorable teeth are not eligible for service connection compensation. See 38 C.F.R. § 4.150. Compensation is only paid for loss of teeth due to loss of substance of the body of maxilla or mandible without loss of continuity (as a result of trauma) or disease such as osteomyelitis, and not the loss of alveolar process as a result of periodontal disease, since such loss is not considered disabling. See Note, 38 C.F.R. § 4.150, Diagnostic Code 9913. As the Veteran does not have a compensable dental disability his claim is denied. Temporomandibular Joint Disorder and Occlusion At his October 2020 VA examination he reported flare-ups of the temporomandibular joint. No degenerative or traumatic arthritis was noted, and pain was not noted during range of motion testing. However, he was diagnosed with temporomandibular joint disorder. See October 2020 VA Examination. He was also diagnosed with temporomandibular joint disorder in an August 2021 VA examination. VA dental treatment records confirmed the diagnosis of temporomandibular joint disorder but found that occlusion was not present. See May 2021 VA Treatment Records. Service treatment records also found that occlusion was not present. Temporomandibular joint disorder falls under 38 C.F.R. § 4.150. However, this disability has not been shown to be connected to service. There is no treatment record from service for temporomandibular joint disorder. The Regional Office obtained an addendum to the October 2020 VA examination where the examiner concluded that the Veteran's dental disorder was more likely from bruxism or grinding of teeth which can cause fractures and sensitivity of the dentition. See August 2021 VA Examination. The Board has considered the Veteran's assertions that he has a current dental disorder related to service. Although he is competent to report his symptoms, he has not been shown to have the medical training or expertise to be competent to render an opinion as to the medical diagnosis or etiology of his dental problems. See, e.g., Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). As such, the Board finds that he does not have a current dental disability that is connected to service and so his claim is denied. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for a right-hand disability. 3. Entitlement to service connection for a left-hand disability. 4. Entitlement to service connection for a right upper extremity disability. Due to the similar dispositions for the above claims on appeal, the Board will address them in a common discussion below. The Veteran asserts that he developed tingling and pain in his hands during service that has continued to the present. However, his range of motion testing was normal, and pain was not noted on examination. Furthermore, imaging of the hands was normal with no evidence of degenerative joint disease. See February 2020 VA Examination. Even though the January 2020 VA examination found that he did not have a current disability, the Veteran has a diagnosis of bilateral carpal tunnel and ulnar neuropathy of the right upper extremity. See October 2019 Disability Benefits Questionnaire and November 2020 VA Examination. The October 2019 questionnaire found that the Veteran's range of motion was normal, but that he experienced pain. The Board will afford the Veteran the benefit of the doubt and finds that he has a current disability of bilateral carpal tunnel and ulnar neuropathy of the right upper extremity. As such, he has met the first element of service connection. Although the Veteran reported having symptoms as early as 1976 or 1977. There is no record of symptoms or treatment from service. He reports falling from a truck, handling heavy artillery, and that he had a strenuous job in service. See January 2019 Hearing Testimony. He asserts that numbness and tingling are a result of his in-service injuries. The Board will give him the benefit of the doubt and find that he was injured in service. Unfortunately, there is no nexus or link between his bilateral carpal tunnel and ulnar neuropathy and service. The November 2020 addendum VA examination lists several possible causes including alcoholism, chronic hepatis c, and cervical radiculopathies. He also worked as an electrician and mechanic after service until 1993 or 1995. See June 1999 North Carolina Disability Medical Exam. Furthermore, VA treatment records establish that he was in a motor vehicle accident in January 1992, sprained his right arm, and was subsequently diagnosed with right arm tendonitis. See VA Treatment Records. Previous VA examinations in February 2016 and January 2020 found that there was no disability present, the imaging did not show evidence of degenerative joint disease or other illness, and that there was no evidence of a peripheral nerve disability. The Regional Office obtained an addendum opinion addressing his carpal tunnel and ulnar nerve disabilities in November 2020 which found that his carpal tunnel syndrome symptoms did not occur until 2017 and he was diagnosed with the disability in 2019. The examiner found that, in addition to the possible causes listed above, the disabilities were not caused by service due to the passage of time that occurred between discharge and diagnosis. See November 2020 VA Addendum Examination. As such, his claims for service connection for bilateral hand and right upper extremity disabilities are denied. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issue of the nature and etiology of the Veteran's skin disability. For the reasons set forth below, additional development is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board may not make a medical determination without relying on independent medical evidence. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). 5. Entitlement to service connection for a skin disability other than eczema. The Veteran asserts that he has cutaneous T-cell lymphoma (CTCL) or residuals of such. His claim for entitlement to service connection for a skin disability was first received by VA in March 2015. Any skin disability that was caused by service that was diagnosed from the receipt of his claim to the present is eligible for service connection. The United States Court of Appeals for Veterans Claims (Court) has held that the "current disability" requirement is satisfied when a claimant has a disability at the time of filing the claim or during the pendency of that claim, even if the disability has since resolved. McLain v. Nicholson, 21 Vet. App. 319 (2007). Furthermore, VA must address every argument put forward by the Veteran. Here, he has asserted that his CTCL was caused by service. He asserts that exposure to herbicide agents, chemical weapons, and warheads in service that could have caused his CTCL. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An adequate examination would address the assertions made by the Veteran and the Board cannot make a determination on the claim without supporting medical evidence. The Board may not make a medical determination without relying on independent medical evidence. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). As such, the claim must be remanded for an adequate VA examination. The matters are REMANDED for the following action: 1. Obtain an addendum opinion regarding the etiology of the Veteran's skin disability, to include cutaneous T-cell lymphoma but not eczema, from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent probability or greater) that the skin disability, to include cutaneous T-cell lymphoma but no eczema, had its onset in or is otherwise related to active service. The examiner must specifically address the following: a. Whether he developed cutaneous T-cell lymphoma due to exposure to herbicide agents (Agent Orange), chemical weapons, or warheads. 2. After, readjudicate the Veteran's claim. If the claim remains denied, send the Veteran and his representative a supplemental statement of the case (SSOC), and allow them an appropriate time to respond before returning the issue to the Board for further appellate consideration. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Johnston, 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.