Citation Nr: 21076547 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 16-25 542 DATE: December 27, 2021 ORDER 1. Entitlement to service connection for a back disability is dismissed. 2. Entitlement to service connection for tinnitus is dismissed. 3. Entitlement to service connection for headaches is dismissed. 4. Entitlement to service connection for posttraumatic stress disorder (PTSD) is dismissed. 5. Entitlement to service connection for major depressive disorder is granted subject to the laws and regulations governing the award of monetary benefits. 6. Entitlement to service connection for a dental disability is denied. FINDINGS OF FACT 1. There is no case or controversy regarding the benefit of entitlement to service connection for a back disability, as the agency of original jurisdiction (AOJ) has already granted entitlement to service connection for degenerative arthritis of the thoracolumbar spine in a July 2020 rating decision. 2. There is no case or controversy regarding the benefit of entitlement to service connection for tinnitus, as the AOJ has already granted entitlement to service connection for tinnitus in a July 2020 rating decision. 3. There is no case or controversy regarding the benefit of entitlement to service connection for headaches, as the AOJ has already granted entitlement to service connection for headaches in a July 2020 rating decision. 4. There is no case or controversy regarding the benefit of entitlement to service connection for PTSD, as the AOJ has already granted entitlement to service connection for PTSD in a July 2020 rating decision. 5. Resolving all reasonable doubt in favor of the Veteran, his major depressive disorder is etiologically related to his active duty service. 6. The Veteran does not have a current dental disorder that qualifies for VA disability compensation purposes stemming from his period of active duty. CONCLUSIONS OF LAW 1. The appeal for the issue of entitlement to service connection for a back disability is rendered moot and is dismissed. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.101. 2. The appeal for the issue of entitlement to service connection for tinnitus is rendered moot and is dismissed. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.101. 3. The appeal for the issue of entitlement to service connection for headaches is rendered moot and is dismissed. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.101. 4. The appeal for the issue of entitlement to service connection for PTSD is rendered moot and is dismissed. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.101. 5. The criteria for entitlement to service connection for major depressive disorder have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for entitlement to service connection for a dental disability for compensation purposes have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310, 3.381, 4.150, 17.161. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1976 to July 1977. In July 2019, the Board remanded the claims for further development. There was substantial compliance with the Board's remand directives to decide the claims on appeal at the present time. See Stegall v. West, 11 Vet. App. 268 (1998). DISMISSALS The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C. § 7104; 38 C.F.R. § 20.101. 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 (d)(5). In July 2019, the Board remanded the claims for further development. Following development, in a July 2020 rating decision, the AOJ granted entitlement to service connection for 1) degenerative arthritis of the thoracolumbar spine; 2) tinnitus; 3) headaches; and 4) PTSD. 1. Entitlement to service connection for a back disability. The Board finds that the issue of entitlement to service connection for a back disability is moot and should be dismissed as it has already been granted and there is no justiciable case or controversy before the Board at this time with respect to this disability. See 38 U.S.C. §§ 7104, 7105(d)(5); 38 C.F.R. § 20.101. 2. Entitlement to service connection for tinnitus. The Board finds that the issue of entitlement to service connection for tinnitus is moot and should be dismissed as it has already been granted and there is no justiciable case or controversy before the Board at this time with respect to this disability. See 38 U.S.C. §§ 7104, 7105(d)(5); 38 C.F.R. § 20.101. 3. Entitlement to service connection for headaches. The Board finds that the issue of entitlement to service connection for headaches is moot and should be dismissed as it has already been granted and there is no justiciable case or controversy before the Board at this time with respect to this disability. See 38 U.S.C. §§ 7104, 7105(d)(5); 38 C.F.R. § 20.101. 4. Entitlement to service connection for PTSD. The Board finds that the issue of entitlement to service connection for PTSD is moot and should be dismissed as it has already been granted and there is no justiciable case or controversy before the Board at this time with respect to this disability. See 38 U.S.C. §§ 7104, 7105(d)(5); 38 C.F.R. § 20.101. 5. Entitlement to service connection for major depressive disorder. The Veteran asserts that his major depressive disorder is related to active duty service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for major depressive disorder is warranted. The Veteran proffered a July 2016 opinion from a licensed clinical social worker, C.B., who is a psychotherapist at VA. She stated that she documented the Veteran's symptoms of PTSD and opined that it was directly caused by his shipwreck experience in the U.S. Navy. The Joint Services Records Research Center (JSRRC) found that the facts, indicated by credible supporting evidence, were sufficient to concede the Veteran's stressor of the shipwreck. C.B. also added that the Veteran was diagnosed with chronic major depression, which she attributed to the shipwreck and his subsequent interactions with people and situations while influenced by PTSD symptoms. Following VA examination in January 2020, the examiner diagnosed mental disorders of PTSD and persistent depressive disorder. The examiner stated that it was not possible to differentiate what symptoms were attributable to each diagnosis. The examiner provided the opinion that the claimed condition was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed inservice injury, event, or illness. He provided the rationale that based on his examination, the Veteran has symptoms of PTSD and depression and there is no evidence that a prior existing psychiatric condition (PTSD/depression) existed prior to the Veteran's military service. He added that he also reviewed records of current and past treating psychological/psychiatric providers who have worked with the Veteran over the period of time and continued to document and substantiate that these remain active diagnoses. The Veteran has already been service-connected for PTSD. Although the restriction on pyramiding prevents a veteran from being compensated i.e., rated or evaluated twice for the same symptoms, the ban does not preclude a claimant from being service-connected for disabilities with overlapping symptoms. See Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998); 38 C.F.R. § 4.14. As the U.S. Court of Appeals for the Federal Circuit explained in Collaro, a disability compensation claim consists of five different elements, including service connection and disability rating. Collaro v. West, 136 F.3d at 1308. Thus, the issue of whether to grant service connection is separate from the determination of how to rate a service-connected disability. Id.; see also Esteban v. Brown, 6 Vet. App. 259 (1994) (addressing a veteran's entitlement to separate ratings). However, a grant of service connection for another psychiatric disorder may result in a higher rating under 38 C.F.R. § 4.130 if there are symptoms attributable to the newly service-connected psychiatric disorder that are not compensated under the already service-connected psychiatric disorder. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Accordingly, taking into consideration the totality of the evidence, including the favorable opinions, the Board finds that resolving all reasonable doubt in favor of the Veteran, the evidence is at least in equipoise that his major depressive disorder is etiologically related to his active duty service. Therefore, the Veteran's service connection claim for major depressive disorder is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board expresses no opinion regarding the severity of the disability and is not making a finding of a compensable disability rating for the Veteran's major depressive disorder. A staged rating may also be warranted depending on the severity of the Veteran's disability. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). It should be noted that the Veteran is currently in receipt of service connection for PTSD at a 50 percent rating, effective March 31, 2009. The Rating Schedule recognizes that a single disability may result from more than one distinct injury or disease; however, rating the same disability or its manifestation(s) under different diagnostic codes - a practice known as pyramiding - is prohibited. See 38 C.F.R. § 4.14. The agency of original jurisdiction will assign an appropriate disability rating on receipt of this decision, based on applicable regulation. Ferenc v. Nicholson, 20 Vet. App. 58 (2006) (discussing the distinction in the terms "compensation," "rating," and "service connection" as although related, each having a distinct meaning as specified by Congress). 6. Entitlement to service connection for a dental disability. The Veteran contends that he has a dental disability related to service, specifically that he had fillings put into his mouth during boot camp in Orlando, Florida and was told that he would need surgery. See April 2009 statement. The Veteran has also stated that during the U.S.S. Rich collision he hit his head and after the accident he showered in and drank sea water that got into the fresh water supply. See June 2015 statement. In the VA benefits system, dental disabilities are treated differently from medical disabilities. VA regulations provide 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, not for compensation purposes. 38 C.F.R. § 3.381(a). The exceptions to this general rule are listed under 38 C.F.R. § 4.150, Diagnostic Codes (DCs) 9900 through 9916. Missing teeth may be compensable for rating purposes only where there is bone loss through trauma or disease such as osteomyelitis. See 38 C.F.R. § 4.150, DC 9913 (2018). However, the Note immediately following states that "these ratings apply only to bone loss through trauma or disease such as osteomyelitis and not to the loss of the alveolar process as a result of periodontal disease, since such loss is not considered disabling." Id. The U.S. Court of Appeals for the Federal Circuit defines "service trauma" as "an injury or wound produced by an external physical force during the service member's performance of military duties." Nielson v. Shinseki, 607 F.3d. 802, 808 (Fed. Cir. 2010). This definition may encompass unintended results of treatment due to medical malpractice; however, it excludes the intended result of proper medical treatment. Id. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against a finding that the Veteran has a current dental disorder that qualifies for VA disability compensation purposes that is due to his period of active duty. The Veteran was afforded a VA contracted temporomandibular disorders (TMDs) Disability Benefits Questionnaire (DBQ) examination in December 2019. The examiner, a licensed dentist, indicated that the Veteran had diagnoses of a TMJ disorder and partial loss of teeth. During the examination, the Veteran reported that during boot camp, the dentist put silver mercury fillings in his teeth and symptoms started when he was in a shipwreck and thrown to the deck and hit a pole and desk. He stated that he had an extraction and hydrocodone. The Veteran reported current symptoms of problems chewing, speaking, swallowing, moving his jaw, anxiety, and depression. The Veteran's service treatment records and post-service treatment records do not show that he experienced bone loss due to service trauma or disease. The examiner noted February 2010 dental treatment, however, found that there was insufficient medical documentation to determine the etiology of the dental work. The examiner indicated that she reviewed the Veteran's service treatment records and noted that the Veteran had his wisdom teeth removed in March 1977 and that there was a filling placed in tooth number 15 on November 1976. The examiner found no documentation of any dental trauma, injury, infection, or other and there has been nothing submitted which demonstrated the existence of a condition, for which service connection can be granted, that is related to trauma from service. The Board also notes that in the Veteran's July 1977 Report of Medical Examination for purposes of separation reflected that he had a normal clinical evaluation of the "mouth and throat" and noted remarks of dental defects and diseases of "T-III, C-II." The December 2019 examiner addressed this examination report in her opinion, discussed below. In the accompanying July 1977 Report of Medical History, when asked if he ever had or had at the time, "severe tooth or gum trouble," the Veteran checked "no." A May 1978 post-service dental record reflects that the Veteran had extractions of teeth number 14 and 18; ceramic crowns for teeth number 5, 13, and 15; and a pontic of tooth number 14. In an associated health questionnaire for dental outpatients, when asked if he had any sore in his mouth or anywhere else that had been there for 10 days or longer and if he had any teeth extracted while in service, the Veteran checked "no." Specifically, upon physical examination, the December 2019 examiner indicated that the Veteran was not missing substance on the maxilla or mandible because of trauma. She indicated that the Veteran had loss teeth due to dental decay and possibly periodontal disease. She explained that there is no bony evidence on the radiograph of traumatic bone loss. The Veteran is missing numerous teeth including teeth 1, 2, 3, 12, 13, 14, 15, 16, 17, 18, 19, 20, 28, 29, 39, 31, and tooth number 32 is impacted as well, as tooth number 4 is non-restorable and fractured. The examiner stated that these missing teeth could be replaced with a removable partial denture and it could reestablish biting surfaces in the posterior of his mouth which could help alleviate some of the Veteran's TMJ pain. The examiner indicated that medical record of July 1977, the Report of Medical Examination, noted missing teeth number 26, 21, and 16; in November 1976 tooth number 15 root top was extracted; and in March 1977 fillings were completed on teeth number 3 and 4. The examiner found that the claimed tooth condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner provided the rationale that the Veteran had no measurable functional loss or measurable significant restriction of motion to attribute any dysfunction or perceived dysfunction to the time in service. The examiner considered the Veteran's claim to have pain in the jaw joint that caused headaches. She indicated that when he was asked to open and close [his mouth] three times, his opening decreased, and his facial appearance indicated that he was experiencing some pain. She concluded that due to the lack of evidence in his medical history of the shipwreck and any trauma he immediately incurred at the time, it is unlikely that his current jaw pain is from the incident. As the preponderance of the evidence is against a showing of a qualifying dental disability for VA compensation purposes at any time during the claim period, there is no separate and underlying disability that can be related to service. Thus, there can be no entitlement to compensation. preponderance of the evidence is against the Veteran's claim and the benefit-of-the-doubt rule does not apply. Absent a current dental disability for VA compensation purposes, this claim of entitlement to service connection is denied. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Cheng, 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.