Citation Nr: 21005427 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 16-25 955 DATE: February 1, 2021 ORDER Service connection for a dental disability for compensation purposes is denied. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a traumatic brain injury (TBI) is remanded. Entitlement to service connection for a noncompensable dental disability for the purpose of obtaining VA outpatient dental treatment is remanded. FINDING OF FACT The Veteran’s dental disorder, described as missing teeth, is not considered a disability for VA compensation purposes. CONCLUSION OF LAW The criteria for service connection for a dental disability for compensation purposes have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.381, 4.150. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1980 to June 1982. This appeal comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Guaynabo, Puerto Rico. In June 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. In October 2019, the Board remanded the claims for further development. Lastly, it is noted that because a claim for service connection for a dental disability for purposes of compensation must also be considered to be a claim for service connection for a dental disability for purposes of VA outpatient dental treatment, the Board has recharacterized the issue to include a claim for VA outpatient dental treatment. See Mays v. Brown, 5 Vet. App. 302, 306 (1993). Entitlement to service connection for a dental disability for compensation purposes. The Veteran, and his representative, contends that he is entitled to service connection for a dental disability. Specifically, the Veteran testified that his dental disorder, described as missing teeth, stems from an in-service altercation on Camp Pendleton. See Hearing Transcript at 4 (June 2019). The Board concludes that the preponderance of the evidence weighs against a finding that the Veteran has a dental disability that may be service connected for compensation purposes. 38 C.F.R. § 4.150. Dental disabilities which may be awarded compensable ratings include chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss of the mandible, nonunion or malunion of the mandible, limited temporomandibular motion, loss of the ramus, loss of the condyloid or coronoid processes, loss of the hard palate, loss of teeth due to the loss of substance of the body of the maxilla or mandible and where the lost masticatory surface cannot be restored by suitable prosthesis, when the bone loss is a result of trauma or disease but not the result of periodontal disease, or when there is neoplasm, hard and soft tissue, benign or malignant. 38 C.F.R. § 4.150, Diagnostic Codes 9900-9918. Compensation is available for loss of teeth only if such loss is due to loss of substance of the body of the maxilla or mandible during service due to trauma or disease such as osteomyelitis, and not to the loss of the alveolar process as a result of periodontal disease. 38 C.F.R. § 4.150, Diagnostic Code 9913 (Note). Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease cannot be service connected for purposes of compensation. 38 C.F.R. § 3.381. The law mandates that the term “service trauma” does not include the intended effects of therapy or restorative dental care and treatment provided during a veteran’s active service. See 38 C.F.R. § 3.306(b)(1); VAOGCPREC 5-97. The significance of finding that a dental condition is due to in-service trauma is that a veteran will be eligible for VA outpatient dental treatment, without being subject to the usual restrictions of a timely application and one-time treatment. 38 C.F.R. § 17.161(c). VA examination report, dated in January 2020, shows that the Veteran is missing tooth #7, #8, and #9, due to in-service trauma, described as being hit in the head. The examiner noted that the teeth loss was not due to loss of substance of body of maxilla or mandible and that the masticatory surfaces of the teeth can be restored by suitable prosthesis. Aside from that finding, the examination report is negative for any other dental condition, in which, a compensable rating may be awarded. 38 C.F.R. § 4.150, Diagnostic Codes 9900-9918. Indeed, at most, the record shows that the Veteran has loss of teeth due to in-service trauma, but the loss of the masticatory surface can be restored by suitable prosthesis. Id. Furthermore, there is no competing medical opinion or examination report of record. Accordingly, the Board finds that the January 2020 VA examination report is dispositive of the issue at hand. Thus, the Board finds that the preponderance of the evidence is against finding that the Veteran has a dental disability for VA compensation purposes. Id. The Board assigns greater probative value to the medical evidence of record. Specifically, the January 2020 VA examination report finding no evidence of a dental disability pursuant to 38 C.F.R. § 4.150. On balance, the weight of the evidence is against the claim. Overall, the Board finds the evidence does not show a dental disability for which compensation was payable. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). REASONS FOR REMAND In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. 1. Entitlement to service connection for a lumbar spine disability is remanded. The Veteran, and his representative, contends that his current lumbar spine disability stems from service. See Hearing Transcript at 4-5 (June 2019). Specifically, the Veteran argues that his current lumbar spine disability is related to military duties associated with the 105-mm Howitzer, to include carrying ammunition. In the alternative, the Veteran also maintains that his lumbar spine disability is secondary to his service-connected cervical spine disability. See VA Form 4138 (September 2013). For reasons explained below, the Board finds that remand is necessary. VA medical opinion, dated in December 2019, reflects the conclusion that the Veteran’s current lumbar spine disability is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The Board finds the VA medical opinion is inadequate for adjudicative purposes. Hayes v. Brown, 5 Vet. App. 60, 69 (1993). In this instance, the opinion does not reflect consideration of the Veteran’s theory that his current lumbar spine disability stems from duties associated with the 105-mm Howitzer. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) (“the VA examiner’s failure to consider [a veteran’s] testimony when formulating her opinion renders that opinion inadequate.”). Indeed, the opinion seems to rely almost entirely on the absence of documented treatment, in-service and post-service, in finding that the Veteran’s current disability is not related to service. Although the clinician is not required to accept the Veteran’s theory that his military service caused his disability, or that he had symptoms associated with the disability during or following military service if this is incongruous with the record; however, the clinician is required to fully explain why he or she disagrees with the Veteran’s theory of causation, and provide a discussion of the relevant or significant medical history, clinical findings, medical knowledge or literature, etc., that support the negative medical opinion or conclusion(s). If another etiology is the more likely cause, the clinician must provide a complete explanation of his or her reasoning. Next, VA medical opinion, dated in October 2020, reflects the conclusion that the Veteran’s lumbar spine disability is less likely than not proximately due to or the result of his service-connected cervical spine disability. In support of the conclusion, the clinician noted that [a]rthritis in one joint does not cause arthritis in another joint. A thorough review of medical literature failed to show such causal relationship. It is not unusual for two joints to share properties in the same person, but one joint’s disease does not ‘spread’ to another or cause damage to it. C&P Exam (October 2020). The Board finds the VA medical opinion is inadequate for adjudicative purposes. Hayes, 5 Vet. App. at 69. Here, the essential rationale for that conclusion is absent. Indeed, the opinion notes that the medical literature does not show a causal relationship between the disabilities, however, the opinion does not provide the Board the facts specific to the Veteran vis-à-vis the medical literature that was reviewed. See Bailey v. O’Rourke, 30 Vet. App. 54, 60 (2018) (stating that a medical rationale based solely on general medical literature without discussing the specific facts pertaining to a veteran’s condition or individual circumstances is inadequate). Further, the opinion does not reflect a conclusion or reasoned medical rationale on the question of whether the Veteran’s lumbar spine disability is aggravated beyond its natural progression by service-connected cervical spine disability. See Allen v. Brown, 7 Vet. App. 439 (1995). Indeed, the bulk of the rationale provided by the opinion reflects an analysis based on causation. See Atencio v. O’Rourke, 30 Vet. App. 74, 90-91 (2018) (holding that a medical opinion was inadequate when it was unclear whether the examiner had clearly provided a rationale that dealt with causation and aggravation as independent concepts). Lastly, the Board acknowledges VA medical opinion, dated in December 2019, reflecting the conclusion that the Veteran’s lumbar spine disability is at least as likely as not proximately due to or the result of his service-connected cervical spine disability. In support of the conclusion, the clinician noted that the Veteran’s lumbar spine disability is at least as likely as not related to the neck condition due to the increased inflammation and irritation from surrounding soft tissues of neck affecting the alignment of the spine thus causing upper back pain and neck pain. The current [] thoracolumbar spine diagnosis is at least as likely as not proximately due to or the result of the cervical spine condition because medically there is a pathophysiological relationship between the two conditions. The Board finds the VA medical opinion is inadequate to support the claim. Hayes, 5 Vet. App. at 69. In this instance, the opinion is not shown to be based on an accurate factual premise with consideration of the Veteran’s prior medical history. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). In this regard, private treatment records show that the Veteran, and a past health provider, have linked his lumbar spine disability to heavy lifting, as a body builder, and antibiotic steroid abuse. For instance, private treatment record, dated in November 2007, reflects that the Veteran reported being a body builder in the past and having sustained “numerous musculoskeletal injuries as a result of heavy lifting.” The VA medical opinion, however, does not show a discussion or clarification on the contrary findings in the Veteran’s treatment records; thus, the Board finds the VA medical opinion inadequate as it is not shown to be founded on an accurate factual premise with consideration of the Veteran’s prior medical history. Given the above, the Board finds that it may not rely upon the medical opinions in their present form and, therefore, concludes that the opinions are inadequate for adjudicative purposes. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the Board finds that remand is necessary for an addendum VA medical opinion that addresses the Veteran’s theory of causation. See Colvin v. Derwinski, 1 Vet. App. 171 (1991); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board’s duty to return an inadequate examination report “if further evidence or clarification of the evidence . . . is essential for a proper appellate decision”). 2. Entitlement to service connection for a TBI is remanded. The Veteran, and his representative, contends that residuals of his TBI are related to an in-service assault in which he was injured by a baseball bat. See Hearing Transcript at 3 (June 2019). For reasons discussed below, the Board finds that remand is necessary to obtain an addendum medical opinion. Service connection will be granted for a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence such as to warrant a finding that the disease or injury existed before acceptance and enrollment, and was not aggravated by such service. 38 U.S.C. § 1111. A preexisting injury or disease is considered aggravated by military service where there is an increase in disability during service, absent a specific finding that the increase in disability was due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). For veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306(b). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. §§ 3.304, 3.306(b). Here, the record raises a question as to whether the Veteran had a TBI that preexisted service. As discussed above, a veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted on entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). In cases where the disease or injury at issue is not noted on the entrance examination, a two-pronged test is for consideration in determining whether the presumption of soundness has been rebutted. First, VA must show by clear and unmistakable evidence that the disease or injury existed prior to service. Second, VA must show by clear and unmistakable evidence that the preexisting disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). A review of the Veteran’s May 1980 enlistment examination report is negative for a TBI or a head injury. However, in the corresponding report of medical history, the Veteran reported a prior head injury. The examiner elaborated on the Veteran’s report by annotating, in the report, that (1) he had a cerebral concussion, six months ago, (2) loss consciousness for 30 seconds, and (3) was resolved. Nevertheless, as the entrance examination report reveals that no abnormalities or defects were noted for the head or neurologic, to include a TBI, the presumption of soundness, accordingly, is for application. To rebut this presumption, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See 38 C.F.R. § 3.304(b); see also Wagner, 370 F.3d at 1093. Thus, as VA regulations pertaining to the rebuttal of the presumption of soundness require the highly stringent standard of clear and unmistakable evidence that the Veteran’s disease or injury existed prior to service and clear and unmistakable evidence that the preexisting disease or injury was not aggravated by service, the Board finds that an addendum medical opinion is necessary. VA has not yet obtained a medical opinion addressing this aspect of the Veteran’s claim for service connection. See Horn v. Shinseki, 25 Vet. App. 231, 243 (2012) (“[T]he Secretary’s authority to develop a claim necessarily includes the authority to collect and develop evidence that might rebut the presumption of service connection.”) (citing Douglas v. Shinseki, 23 Vet. App. 19, 24 (2009)); Shoffner v. Principi, 16 Vet. App. 208, 213 (2002) (Board has discretion below as to how much development is required). Further, at the Board hearing on the issues, the Veteran testified to receiving Social Security Disability Insurance. See Hearing Transcript at 6 (June 2019). These records are considered federal records for duty to assist purposes. The agency of original jurisdiction (AOJ), in this case, has not made the appropriate attempts to obtain the records. Upon remand, SSA records should be obtained. 3. Entitlement to service connection for a noncompensable dental disability for the purpose of obtaining VA outpatient dental treatment is remanded. The Board must address all issues explicitly raised by the Veteran or reasonably raised by a liberal reading of the record; consistent with this principle, a claim for service connection for a dental condition for purposes of compensation must also be considered to be a claim for service connection for a dental disability for purposes of VA outpatient dental treatment. See Mays, 5 Vet. App. 302. The Board further notes that, as to each noncompensable service-connected dental condition, a determination will be made regarding whether it was due to combat wounds or other service trauma. 38 C.F.R. § 3.381(b). The regulation relating to service connection of dental conditions for treatment purposes was amended, effective February 29, 2012, in order to clarify existing regulatory provisions and to reflect the respective responsibilities of the Veterans Health Administration (VHA) and Veterans Benefits Administration (VBA) in determinations concerning eligibility for dental treatment. See Proposed Rules, Dental Conditions, 76 Fed. Reg. 14,600 (Mar. 17, 2011); Final Rule, Dental Conditions, 77 Fed. Reg. 4469 (Jan. 30, 2012). The amended version of 38 C.F.R. § 3.381 clarifies that VBA will adjudicate a claim for service connection of a dental condition for treatment purposes after the VHA determines that a veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161 and requests that VBA make a determination on relevant questions. 38 C.F.R. § 3.381(a). In this case, the AOJ did not refer the claim of service connection for a dental disability for purposes of VA outpatient treatment purposes. As such, the Board finds that a remand is appropriate here. A remand with instructions to the AOJ to refer the claim to the VHA, which the regulation provides must make the initial determination on the claim, will better ensure that the claim is addressed promptly and efficiently, and is, therefore, consistent with the uniquely pro-claimant principles underlying the veterans’ benefits system. Nat’l Org. of Veterans Advocates, Inc. v. Sec’y of Veterans Affairs, 710 F.3d 1328, 1330 (Fed. Cir. 2013). The matters are REMANDED for the following actions: 1. Refer the claim for dental treatment to the appropriate VA Medical Center (VAMC) of the VHA to determine if the Veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161. 2. Request all documents pertaining to any application by the Veteran for Social Security Administration disability benefits, including the medical records considered in deciding the claim. If any requested records are unavailable, the Veteran and his representative should be notified of such. 3. Obtain all VA treatment records dated from November 2020 to the Present. 4. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s lumbar spine disability. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran’s reported symptoms, including the nature, onset, progression and severity of any symptoms consistent with any lumbar spine disability. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. The clinician must opine on: Direct Service Connection (a) Whether any lumbar spine disability at least as likely as not (1) began during active service or (2) is related to an in-service injury, event, or disease. Consider and expressly address the Veteran’s theory that his current disability stems from duties associated with the 105-mm Howitzer, to include carrying ammunition. Additionally, consider and expressly address medical evidence showing a history of heavy lifting, as a body builder, and steroid abuse, as related to the lumbar spine disability. Explain. (b) For arthritis of the lumbar spine, opine on whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. Explain. Secondary Service Connection (c) Whether any lumbar spine disability is at least as likely as not (1) proximately due to service-connected cervical spine disability, or (2) aggravated beyond its natural progression by service-connected cervical spine disability. Provide a rationale that deals with causation and aggravation as independent concepts. Explain. 5. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s alleged TBI. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran’s reported symptoms, including the nature, onset, progression and severity of any symptoms consistent with a TBI. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. The clinician must opine on: (a) Whether it is at least as likely as not the Veteran has, or has had, a TBI at any time during the pendency of the claim or recent to the filing of the claim. Attempt to reconcile, or explain, medical evidence showing negative and positive findings for TBI. Explain. FOR THE BELOW, ONLY OPINE IF THE VETERAN IS FOUND TO HAVE HAD A TBI. Preexisting Disability (b) Whether any TBI clearly and unmistakably (undebatable) preexisted the Veteran’s service. Consider the May 1980 entrance report of medical history showing that the Veteran had a cerebral concussion, loss consciousness for 30 seconds, and was subsequently resolved. Explain. (c) If so, whether it was clearly and unmistakably not aggravated by service or whether it is clear and unmistakable that any increase was due to the natural progress. Consider the in-service assault in which the Veteran alleges he was injured by a baseball bat. Explain. Non-Preexisting Disability (d) For any non-preexisting TBI, opine on whether it is at least as likely as not that it had its onset in service or is related to an in-service injury, event, or disease. Consider the in-service assault in which the Veteran alleges he was injured by a baseball bat. Explain. If any history of injury, onset of symptoms, progression of symptoms, etc., is rejected by the examiner then the examiner must provide a full explanation for such (e.g. symptoms do not align with how the currently diagnosed disability is known to develop, explaining why; or the reported in-service injury and/or symptoms is generally inconsistent with medical knowledge or implausible, explaining why.). 6. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Griffey, 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.