Citation Nr: 21070446 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 15-32 412 DATE: November 24, 2021 ORDER Entitlement to service connection for bilateral hearing loss is dismissed. Entitlement to service connection for right eye vitreous floaters is granted. REMANDED Entitlement to service connection for a right eye condition (other than vitreous floaters) is remanded. Entitlement to service connection for a left eye condition is remanded. Entitlement to service connection for a dental condition is remanded. FINDINGS OF FACT 1. On July 27, 2021, prior to the promulgation of a decision in the appeal, the Veteran expressed his desire on the record at the Board hearing to withdraw from appellate review his claim for service connection for bilateral hearing loss; a transcript of the proceeding has been associated with the claims file. 2. The Veteran's right eye vitreous floaters were incurred in service. CONCLUSIONS OF LAW 1. The criteria for dismissal of the claim for service connection for bilateral hearing loss have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2021). 2. The criteria for entitlement to service connection for right eye vitreous floaters have been met. 38 U.S.C. §§ 1110, 1111, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from June 2005 to August 2013 including service in Iraq and Afghanistan. These matters come before the Board of Veteran's Appeals (Board) on appeal from a March 2014 rating decision by the Regional Office (RO). In July 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is associated with the claims file. In August 2021, the Veteran filed a Form 21-22 seeking to appoint a new service organization as his representative. Because this request to change representation was submitted more than 90 days after the appeal was certified to the Board, the request is considered a motion to change representation, and the Board finds that good cause has been shown and the motion is therefore granted. See 38 C.F.R. § 20.1304(b) (2018). Dismissal 1. Entitlement to service connection for bilateral hearing loss The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2018). Withdrawal may be made by an appellant or by his or her authorized representative. Id. At the Board hearing, the Veteran expressed his desire to withdraw from appellate review his claim for service connection for bilateral hearing loss; a transcript of the proceeding has been associated with the claims file. His withdrawal of the appeal at the Board hearing was explicit, unambiguous, and with a full understanding of the consequences of such withdrawal, which consequences were explained to him at the hearing. See DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018). As such, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal, and the claim for service connection for bilateral hearing loss it is dismissed. Service Connection 1. Entitlement to service connection for right eye vitreous floaters The Veteran contends that he has right eye floaters due to his active service. See Form 21-526c (Pre-discharge). The Board will address whether he has any other bilateral eye condition due to his active service in the remand section below. The Veteran testified at the Board hearing that he has experienced right eye floaters since his active service. An April 2013 service treatment record shows the Veteran reported experiencing a "squiggly blur" in his right eye since 2006. See STR, received September 2013 at p.92 of 114. Examination of his eyes was normal bilaterally, including the sclera, cornea, anterior chamber, uveal tract, lens, vitreous, optic disc, retina, macula, and vessel. His uncorrected distance visual acuity was 20/20 bilaterally. Peripheral vision was full to confrontation. The optometrist noted that most of the time, doctors cannot see the floaters, and that the Veteran's eyes looked clear on examination. Diagnoses were recorded of right eye vitreous floaters, refractive error hyperopia, and astigmatism. It was noted that because the Veteran's vision was not blurred, he did not need eyeglasses. Post-service, a December 2013 VA examination report shows the Veteran reported right eye floaters since 2006. The Veteran's distance visual acuity was 20/20 bilaterally. Visual fields were full to confrontation in all eight meridians. Physical examination of his eyes was normal bilaterally, including the cornea, iris, lens, anterior chamber, macula, vitreous, and peripheral retina. The examiner noted that floaters are commonly a subjective complaint because these filaments are difficult for doctors to see and are seldom of any visual consequence. The examiner diagnosed subjective report of right eye floaters, and bilateral "low refractive error." The examiner noted that the Veteran had a "low" amount of hyperopia and may need eyeglasses in five to 10 years. The VA examiner opined that the Veteran's visual impairment is not at least as likely as not caused by his active service. The examiner explained that eye floaters seldom are of any visual consequence, the Veteran's hyperopia was "low," and he would not need eyeglasses for another five to 10 years. No etiological opinion was provided, however, regarding the right eye floaters. Regarding the right eye floaters, as shown above, the Veteran was diagnosed with the right eye floaters in service, and during the period on appeal on VA examination. There is no evidence of any intercurrent injury or disease. The Board acknowledges that the right eye floaters were diagnosed based on the Veteran's own subjective report, as the in-service optometrist and the VA examiner both explained that the filaments or floaters are difficult for a doctor to visualize. Even so, the Board is cognizant that the rating schedule contemplates VA compensation for other subjective maladies, such as headaches. With regard to disabilities of the eye, although the rating schedule generally contemplates compensable ratings for loss of visual acuity or visual field impairment, which is not shown in this case due to the right eye floaters, the Board finds this to be a downstream rating matter. Here, the issue before the Board is whether the Veteran incurred an eye injury or disease in service. Clearly, the Veteran was diagnosed with right eye vitreous floaters in service, and post-service during the period on appeal. Therefore, the Board finds that service connection for right eye vitreous floaters is warranted and will grant the claim. REASONS FOR REMAND 1. Entitlement to service connection for a right eye condition (other than vitreous floaters), to include refractive error 2. Entitlement to service connection for a left eye condition, to include refractive error The Veteran claims he has a bilateral eye condition (other than right eye vitreous floaters) due to his active service. See Form 21-526c (Pre-discharge). Although the Veteran's primary contention in this appeal was that he has right eye floaters due to his active service, for which service connection is granted herein, nonetheless, he filed his claim more generally as for service connection for a "bilateral eye condition." Therefore, the Board will address whether he has any bilateral eye condition, other than right eye floaters, that is related to his active service. As discussed in greater detail above, an April 2013 service treatment record shows the Veteran was diagnosed in service with right eye vitreous floaters and refractive error hyperopia. It was noted that because the Veteran's vision was not blurred, he did not need eyeglasses. See STR, received September 2013 at p.92 of 114. Post-service, the December 2013 VA examination report shows diagnosed right eye floaters and bilateral "low refractive error." The VA examiner opined that the Veteran's visual impairment is not at least as likely as not related to his active service. The examiner reasoned that eye floaters are seldom of any visual consequence, and the Veteran's hyperopia was "low," and he would not need eyeglasses for another five to 10 years. The Board notes that Dorland's Medical Dictionary (30th edition) defines hyperopia as an "error of refraction." VA regulations provide that congenital or developmental defects, including refractive error of the eye, do not constitute "diseases or injuries" for VA compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9 (2020). "VA based its exclusion of 'refractive error of the eye' on the fact that refractive errors of the eye, such as presbyopia, are recognized in medical literature as being constitutional or developmental abnormalities. . . The fact that this condition is due to developmental problems associated with aging rather than due to trauma that was incurred during military service is a reasonable basis for excluding 'refractive error of the eye' from the construction of the terms 'injury' and 'disease.'" See Terry v. Principi, 340 F.3d 1378 (Fed. Cir. 2003). The VA General Counsel has held, however, that service connection may be awarded for a congenital defect subject to superimposed disease or injury during service. See VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990). Because the December 2013 VA examiner did not clearly address whether the Veteran's refractive error was subject to superimposed disease or injury in service resulting in additional disability, regrettably, the Board finds the claims should be remanded for a VA medical opinion to address this. 3. Entitlement to service connection for a dental condition The Veteran claims entitlement to service connection for a dental condition for VA compensation purposes (not for entitlement to VA dental treatment). The Veteran reported in his April 2014 notice of disagreement that his tooth #9 was injured in 2007 in Afghanistan when he was struck by a door. See NOD, April 2014. His service dental records document a history of avulsion of tooth #9 in service in 2007 in Afghanistan, that it was replanted at the time, but later was extracted and replaced with an implant in October 2012. See STR - Dental at p.23, 31, 74, 78, 84-85, of 110. Generally, dental conditions such as treatable carious teeth, replaceable missing teeth, dental abscesses, and periodontal disease are not considered disabling conditions for VA compensation purposes. See 38 C.F.R. § 3.381 (2020). Diagnostic Code 9913 provides compensable ratings for tooth loss, due to loss of substance of the body of the maxilla or mandible, where the lost masticatory surface cannot be restored by suitable prosthesis. Loss of all teeth warrants a 40 percent rating; loss of all upper teeth - 30 percent; loss of all lower teeth - 30 percent; all upper and lower posterior teeth missing - 20 percent; all upper and lower anterior teeth missing - 20 percent; all upper anterior teeth missing - 10 percent; all lower anterior teeth missing - 10 percent; all upper and lower teeth on one side missing - 10 percent; where the loss of masticatory surface can be restored by suitable prosthesis - noncompensable. See 38 C.F.R. § 4.150 (unchanged after recent amendments to the schedule for rating dental disabilities). The Veteran himself testified at the Board hearing that he was told by his dentist that his teeth looked good, and he denied any bone loss. The Veteran was afforded a November 2013 VA examination. The examiner noted that no anatomical loss or bony injury of the maxilla or mandible was found on examination. However, the examiner did note that the Veteran reported experiencing right-sided temporomandibular joint dysfunction (TMJ) since 2008, and that he has difficulty closing his jaw three to five times per year. The examiner did not explicitly provide an etiological opinion as to whether the reported TMJ is related to the Veteran's active service. The same dentist who performed the VA examination created a VA dentistry note of the same date, noted the Veteran was a new patient to the clinic, that his chief complaint was TMJ, and noted TMJ dysfunction in the active problem list, but no TMJ was found at that time. See "VA Examination," November 18, 2013. There is no other dental record showing complaint of TMJ during the period on appeal. In an April 2014 outpatient dental record the Veteran denied any TMJ symptoms. In light of the above, the Board finds the claim should be remanded for a new VA examination to address the nature and etiology of the noted TMJ dysfunction. The matters are REMANDED for the following action: 1. Obtain a VA medical opinion based on a review of the entire claims file, including a copy of this remand, to address whether it is "at least as likely as not" that the Veteran's refractive error diagnosed on VA examination in December 2013 was subjected to superimposed disease or injury during the Veteran's active service resulting in additional disability. The complete claims folder must be provided to the examiner for review in conjunction with the examination, and the examiner must note that the claims folder has been reviewed. Any opinion must be accompanied by a complete rationale. Direct the VA examiner's attention to the Veteran's testimony at the Board hearing. A new VA examination is required if deemed necessary to form the requested opinion. 2. Afford the Veteran a new VA examination to address the nature and etiology of any temporomandibular joint dysfunction (TMJ). The complete claims folder must be provided to the examiner for review in conjunction with the examination, and the examiner must note that the claims folder has been reviewed. The examiner should opine as to whether it is "at least as likely as not" that any TMJ identified on examination was caused by the Veteran's active service. Any opinion must be accompanied by a complete rationale. Direct the VA examiner's attention to a November 18, 2013 VA dentistry note (new patient) reflecting an active problem of TMJ, and to the December 2013 VA examination report showing the Veteran's reported history of TMJ since 2008 as well as other dental examinations that find no TMJ symptoms. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Juliano, 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.