Citation Nr: 21072421 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 13-20 586 DATE: December 3, 2021 ORDER Service connection for a heart condition is denied. Service connection for a dental condition is denied. REMANDED Entitlement to an increased evaluation for status post trauma, right hand thumb with tenosynovitis is remanded. Entitlement to service connection for flat feet is remanded. Entitlement to service connection for spots in eyes is remanded. Entitlement to service connection for a stomach condition is remanded. Entitlement to service connection for dizziness is remanded. Entitlement to service connection for a back condition is remanded. FINDINGS OF FACT 1. The preponderance of evidence weighs against a finding that the Veteran has a heart condition for which service connection may be granted. 2. The preponderance of evidence weighs against a finding that the Veteran has a dental condition for which service connection may be granted. CONCLUSIONS OF LAW 1. The criteria for service connection for a heart condition are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a dental condition are not met. 38 U.S.C. §§ 1712 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.381, 4.150. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from February 1984 to May 1986. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for a heart condition is denied. The Veteran seeks service connection for a heart condition. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must generally be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For organic diseases of the nervous system, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331, 1336-38 (2013). Continuity of symptomatology requires the chronic disease to have manifested in service. 38 C.F.R. § 3.303(b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. 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). A review of the medical record in this case does not show that the Veteran has any diagnosed heart condition for which service connection may be granted. In August 2009, records show the Veteran reported to the emergency room at a VA facility with complaints of chest pain and pounding, which were exacerbated by eating and drinking. Upon evaluation, the Veteran became confused and complained of being unable to breathe. He showed decreasing responsiveness during the evaluation. The treating physician wrote that the etiology of the Veteran's presentation was not at all clear. The physician wrote notes on attempting differential diagnoses considering pulmonary embolism, abdominal aortic aneurysm, and acute coronary syndrome, as well as a possible panic attack with hyperventilation (which the doctor annotated to be likely unprovable, and would be a "very, very atypical presentation"). The Veteran was put on an IV and administered pain medications including morphine, and he was held overnight for observations. X-rays showed no abnormalities, and EKG results were normal. He was discharged the following day without further symptoms and without a diagnosis, but with physicians' notes to rule out pulmonary embolism of the thorax, perforated ulcer, and abdominal aortic aneurysm during future medical treatment. See January 2011 Medical Treatment Record Government Facility, pp. 1-20. The record does not show that any follow up treatment occurred, nor that any diagnosis was ever rendered. The Veteran's service treatment records do not show any complaints, treatment, or diagnosis for a heart condition during service. See generally Service Treatment Records Medical. At his discharge examination, the examining physician indicated the Veteran's heart was normal. See May 2014 Service Treatment Record Medical, p. 77. The Veteran has not been afforded a VA examination for this claim. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, four factors are for consideration: (1) competent evidence of a current disability or recurrent symptoms; (2) establishment of an in-service event, injury, or disease; (3) indication that the current disability may be associated with an in-service event; and (4) sufficient competent medical evidence to decide the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-85 (2006). Here, as the medical evidence of record does not show that the Veteran has been diagnosed with any heart condition either in service or after service or has persistent or recurrent symptoms of disability, the Board finds the McLendon factors do not support a VA examination is necessary to adjudicate this matter. The Veteran's August 2009 hospitalization for chest pain was not shown to be a diagnosable heart disorder. No diagnosed heart conditions are shown in the record. The record also does not support that the Veteran's undiagnosed chest pain from 2009 was in any way related to his military service. The Veteran has not alleged that he has any specific heart condition. Accordingly, the evidence does not support that the Veteran has a heart condition for which service connection may be granted, to include any functional impairment due to a heart condition. As such, the first Shedden element is not satisfied, and the claim for service connection is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of evidence is against the claim, that doctrine is inapplicable in this case. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 39, 53-56 (1990). 2. Entitlement to service connection for a dental condition is denied. The Veteran seeks service connection for a dental condition. Under VA regulations, compensation is only available for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150, including conditions of the mandible, maxilla, ramus, condyloid process, coronoid process, hard palate, and loss of teeth due to loss of substance of the body of the maxilla or mandible. See 38 C.F.R. § 4.150, Diagnostic Codes (DCs) 9900-9916. Compensation is available for loss of teeth only if such is due to loss of substance of body of maxilla or mandible; bone loss through trauma or disease, such as osteomyelitis, must be shown for compensation purposes. The loss of the alveolar process as a result of periodontal disease is not considered disabling. See 38 C.F.R. § 4.150, DC 9913. In addition, to be compensable, the lost masticatory surface for any tooth cannot be restorable by suitable prosthesis. 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 and cannot be considered for compensation purposes. 38 U.S.C. § 1712; 38 C.F.R. § 3.381, 4.150. The record shows the Veteran was diagnosed in January 1997 with multiple carious teeth, with a note stating he would require dental scaling in the future. In January 2007, the record shows a tooth extraction for a diseased lower molar. See January 2011 Medical Treatment Record Government Facility, pp. 20-22. The Veteran's service medical record does not show any diagnosis of a chronic condition, or any condition identified in 38 C.F.R. § 4.150. See generally Service Treatment Record Medical. The Board observes that the Veteran has not received a VA examination for this claim. In the absence of any showing of a present disabling dental diagnosis, and the absence of any diagnosis of such condition in service, the Board finds that a VA examination is not warranted in this case. McLendon, 20 Vet. App. at 81-85. As the record does not show that the Veteran has been diagnosed with a dental disability for which service connection may be granted, the claim for service connection is denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (stating that in the absence of proof of present disability there can be no successful claim). As the preponderance of evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5017; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 1. Entitlement to an increased evaluation for status post trauma, right hand thumb with tenosynovitis is remanded. The Veteran seeks an increased evaluation for his service-connected right thumb disability. The Veteran last underwent a VA examination of his right thumb condition in January 2011, during his claim for service connection. He filed a supplemental claim for an increased evaluation for his right thumb in May 2013, which has been read to be an appeal of the initial evaluation. The Veteran has not received a VA examination since the supplemental claim. The Board finds that the Veteran has implicitly contended that his thumb disability increased in severity since the January 2011 VA examination. Accordingly, that examination cannot be used to rate the Veteran's right thumb disability for the entire period on appeal. See Caffery v. Brown, 6 Vet. App. 377 (1994). A remand is necessary to afford the Veteran contemporaneous examinations to determine the current severity of his disabilities. 38 C.F.R. § 3.327(a). 2. Entitlement to service connection for flat feet is remanded. The Veteran seeks service connection for flat feet. During the Veteran's service entrance examination in December 1983, the physician made note of asymptomatic flat feet. As such, this condition is noted and the Veteran is not presumed sound. 38 C.F.R. § 3.304. When a defect, infirmity, or disorder is noted on the enlistment examination, the only benefits that can be awarded are for aggravation pursuant to 38 U.S.C. § 1153 and 38 C.F.R. § 3.306. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A pre-existing injury or disease will be presumed to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability was due to the natural progress of the disease. 38 C.F.R. § 3.306 (a). In such claims, the evidence of record must simply show that there was an increase in disability during service to trigger the presumption of aggravation; the burden then shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." See Wagner, 370 F.3d at 1096 (citing 38 U.S.C. § 1153 ). This requires the government to show by clear and unmistakable evidence that any increase in disability was due to the natural progress of the condition. See Cotant v. Principi, 17 Vet. App. 116, 130-32 (2003); see also 38 C.F.R. § 3.306(b). The presumption of aggravation only requires evidence of an actual worsening of a pre-existing condition during service; it does not require direct evidence of nexus, that is, that the worsening was caused by service. Smith v. Shinseki, 24 Vet. App. 40, 47-48 (2010). At the time of his separation, the Veteran reported continued foot trouble. See May 2014 Service Treatment Record Medical, pp. 79, 83. In light of this, the Board finds a remand is necessary to obtain an adequate medical opinion that addresses whether the Veteran's pes planus showed worsening while in service and, if so, whether the increase in disability is due to the natural progress of the disease. The claim is accordingly remanded. 3. Entitlement to service connection for spots in eyes is remanded. The Veteran seeks service connection for spots in his eyes. During service, the Veteran twice sought medical treatment for foreign bodies in his eyes, including a paint chip in February 1986 and sparks in April 1986. See May 2014 Service Treatment Record Medical, pp. 52, 71. The Veteran has not received a VA examination in the processing of this matter. Based upon the Veteran's documented eye injuries in service, and the Veteran's present claim for a continuing vision condition, the Board finds a VA examination is necessary before adjudication on the merits. See McLendon, 20 Vet. App. at 81-85. The claim is accordingly remanded. 4. Entitlement to service connection for a stomach condition is remanded. The Veteran seeks service connection for a stomach condition, also described as constipation. In October 1984, during his active service, the Veteran reported that he got gas whenever he drank any liquids. The physician assessed gas pain and prescribed maalox as necessary. See May 2014 Service Treatment Record Medical, pp. 20-21. The Veteran has not received a VA examination in the processing of this matter. Based upon the Veteran's documented eye injuries in service, and the Veteran's present claim for a stomach condition, the Board finds a VA examination is necessary before adjudication on the merits. See McLendon, 20 Vet. App. at 81-85. The claim is accordingly remanded. 5. Entitlement to service connection for dizziness is remanded. The Veteran seeks service connection for dizziness. The Veteran sought treatment several times during service for complaints of dizziness, including in June 1984, November 1984, and at separation in April 1986, as well as an episode of feinting on duty in April 1985. See May 2014 Service Treatment Record Medical, pp. 26, 36, 45, 83. The Veteran has not received a VA examination in the processing of this matter. Based upon the Veteran's documented eye injuries in service, and the Veteran's present claim for a continuing dizziness condition, the Board finds a VA examination is necessary before adjudication on the merits. See McLendon, 20 Vet. App. at 81-85. The claim is accordingly remanded. 6. Entitlement to service connection for a back condition is remanded. The Veteran seeks service connection for a back condition. During active service, the Veteran sought treatment for back pain a number of times, including several treatments in October 1984, which were assessed as a lumbar strain, and re-occurrence of back pain in January 1985. At the time of his separation examination in April 1986, the Veteran did not respond to questions regarding back pain. See May 2014 Service Treatment Record Medical, pp. 20-22, 35, 42, 83. The Veteran has not received a VA examination in the processing of this matter. Based upon the Veteran's documented eye injuries in service, and the Veteran's present claim for a continuing back condition, the Board finds a VA examination is necessary before adjudication on the merits. See McLendon, 20 Vet. App. at 81-85. The claim is accordingly remanded. These matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current severity of his service-connected status post trauma, right hand thumb with tenosynovitis. The examiner is to provide a full description of the disability and report all signs and symptoms necessary for evaluating the disability under the rating criteria. The examination should include range of motion measurements. Upon range of motion testing, the examiner should report at what point (in degrees) pain is elicited, and whether there is any other functional loss due to pain, weakened movement, excess fatigability, incoordination, or flare-ups. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight bearing. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his flat feet condition, which was noted upon his entry into active military service. The examiner is to indicate review of the complete record including the Veteran's lay statements. The examiner is asked to provide an opinion addressing: (a.) Did the Veteran's flat feet, which was noted upon his entry into service, increase in disability during service? (b.) If so, is there clear and unmistakable evidence (i.e., undebatable) that the increase in disability is due to the natural progress of the disease? The examiner's opinion should cite to specific evidence of record. If the examiner finds that the Veteran's did not increase in severity during military service, then clearly identify any evidence that led to that conclusion. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his spots in eyes condition. The examiner should identify any diagnoses for an eye condition, and should explain whether those diagnoses constitute a disabling condition and how. Please complete the functional impact section of the report. The examiner should provide an opinion addressing the following: (a.) Is it at least as likely as not (approximately 50 percent or greater probability) that the Veteran has an eye disability incurred in, caused by, or otherwise related to his military service? **The examiner's opinion is to address the in-service treatment for a paint chip in his eye in February 1986 and sparks in his eyes in April 1986. See May 2014 Service Treatment Record Medical, pp. 52, 71.** 4. Schedule the Veteran for a VA examination to determine the nature and etiology of his stomach condition, also claimed as constipation. The examiner should identify any current diagnoses of stomach condition, and should provide an opinion addressing: (a.) Is it at least as likely as not (approximately 50 percent or greater probability) that the Veteran has a stomach disability incurred in, caused by, or otherwise related to his military service? In rendering this opinion, the examiner's attention is invited to the Veteran's complaints of frequent gas pain during service in October 1984. See May 2014 Service Treatment Record Medical, pp. 20-21. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of his dizziness condition. The examiner should identify any current diagnoses regarding dizziness, and should provide an opinion addressing: (a.) Is it at least as likely as not (approximately 50 percent or greater probability) that the Veteran has a dizziness condition incurred in, caused by, or otherwise related to his military service? **In rendering the above opinion, the examiner's attention is invited to the Veteran's complaints of dizziness during service in June 1984, November 1984, at separation in April 1986, and an episode of feinting on duty in April 1985. See May 2014 Service Treatment Record Medical, pp. 26, 36, 45, 83.** 6. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's back condition. The examiner should identify any current diagnoses, and address the following: (a.) Is it at least as likely as not (approximately 50 percent or greater probability) that the Veteran has a current back disability incurred in, caused by, or otherwise related to his military service? The examiner's attention is invited to the Veteran's treatment for a lumbar strain in October 1984 and back pain in January 1985. See May 2014 Service Treatment Record Medical, pp. 20-22, 35, 42, 83. 7. Inform EACH examiner to provide a comprehensive rationale. If any opinion cannot be provided without resorting to speculation, the examiner must explain why this is so and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Hermsdorfer, 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.