Citation Nr: 21073651 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 17-49 587 DATE: December 9, 2021 ORDER Entitlement to service connection for a dental disability is denied. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for arthritis in the knees or ankles is remanded. FINDING OF FACT The Veteran's only current dental disability is at most replaceable missing teeth or gum disease. CONCLUSION OF LAW The criteria for entitlement to service connection for a dental disability have not been met. 38 U.S.C. §§ 1110, 1712, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.381 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1970 to July 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision by the Department of Veterans Affairs (VA). This case was previously remanded in March 2021 for further development. In February 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. After reviewing the evidence of record, and in light of Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Board has recharacterized the issue of service connection for gum disease to encompass any dental disability. The Veteran resubmitted a prior request for eligibility for VA dental services. See July 2021 correspondence. As discussed in the Board's prior remand, a claim of service connection for a dental condition is also a claim for VA outpatient dental treatment under 38 C.F.R. § 3.381. Mays v. Brown, 5 Vet. App. 302 (1993). In dental claims, a Regional Office (RO) adjudicates the service connection claim for compensation purposes and a Veterans Health Administration (VHA) facility adjudicates the claim for outpatient treatment. As this matter stems from an adverse determination by an RO, the appeal is limited to the issue of service connection for a dental condition for the purpose of compensation. The Veteran may resubmit the claim of service connection for a dental condition for the purpose of obtaining VA outpatient dental treatment to the appropriate VHA facility. 1. Entitlement to service connection for a dental disability. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Compensation is only available for certain types of dental and oral conditions, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla. See 38 C.F.R. § 4.150. Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease (including gingivitis) are not compensable disabilities but may be considered service connected solely for the purpose of establishing eligibility for outpatient dental treatment. 38 U.S.C. § 1712; 38 C.F.R. § 3.381. VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran asserts that he no longer has teeth and that his gum disease is due to exposure to asbestos, lead, and toxic fumes in service. See January 2013 VA examination; April 2015 statement. There is no evidence that the Veteran has a dental disability other than replaceable missing teeth or periodontal disease. Because there is no evidence of a dental disability for which service connection may be granted, remand for a VA examination is not required and the claim of service connection for a dental disability must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine disability. The Veteran reported back pain throughout service that continued from that time. See, e.g., September 2017 substantive appeal. Service treatment records (STRs) corroborate back pain in service. See August 1972 STRs. However, the Veteran has had several accidents after service, including a motorcycle accident in 1975about a year after serviceand a bus accident in October 2002. See, e.g., July 2003 VA examination. Radiographic examination after the bus accident revealed a narrowing of weight bearing discs in the Veteran's spine. See October 2002 private treatment records. In July 2021, a VA examiner diagnosed disc herniation, disc bulges, and facet arthropathy. The examiner opined it was less likely than not that the Veteran's back conditions were related to service. The examiner discussed the Veteran's lay reports of symptoms since service and that the Veteran had a negative radiology exam after the bus accident in 2002, but ultimately the examiner relied solely on the absence of evidence in STRs and medical records immediately after service. Additionally, from the Board's review of the file, the 2002 radiology exam results were not negative. As a result, the opinion is inadequate, and remand for a new opinion is necessary. 2. Entitlement to service connection for arthritis in the knees or ankles. The Veteran asserts that his knee and ankle arthritis is due to the strenuous physical activities he experienced on active duty, see April 2015 statement, or due to his non-service-connected back disability. See February 2021 Board hearing. The Veteran is diagnosed with bilateral degenerative arthritis of the knees and ankles. He reported that he did not know when his ankle pain had its onset and that his knee conditions occurred over time. A VA examiner opined it was less likely than not that the disabilities were related to service but relied merely on the absence of evidence in medical records. See July 2021 VA examinations. As a result, the opinions are inadequate and remand for new opinions is necessary. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records from May 2021 to the present. 2. After the above development is completed, the AOJ should arrange for a VA medical opinion, with examination or telehealth interview of the Veteran only if deemed necessary by a medical professional, to determine the nature and likely cause of any lumbar spine disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: For each lumbar spine disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran's military service? Please explain why. The examiner may not rely solely on the absence of evidence in STRs or medical records immediately after service without providing a proper foundation. The examiner must discuss the Veteran's lay report of pain during and since service. The examiner should discuss, as necessary, any radiology reports after the Veteran's October 2002 bus accident, to include a radiology examination that revealed a narrowing of weight bearing discs in the Veteran's spine. 3. After the development in the first directive is completed, the AOJ should arrange for a VA medical opinion, with examination or telehealth interview of the Veteran only if deemed necessary by a medical professional, to determine the nature and likely cause of the Veteran's bilateral knee and ankle arthritis. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: For both the Veteran's bilateral knee and ankle degenerative arthritis, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran's military service? Please explain why. The examiner may not rely solely on the absence of evidence in STRs or medical records immediately after service without providing a proper foundation. The examiner must discuss whether the disabilities are related to any strenuous activity during service. 4. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Sandler, 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.