Citation Nr: 21007018 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 14-09 329 DATE: February 8, 2021 ORDER Service connection for loss of front tooth is denied. REMANDED Service connection for bilateral foot conditions (other than hallux valgus and plantar fasciitis) to include hammer toes, hallux rigidus, pes cavus, hallux limitus, and tailor's bunion, is remanded. FINDING OF FACT The Veteran does not have a qualifying dental disability, claimed as loss of front tooth (tooth #7), for compensation purposes, for which service connection can be granted. CONCLUSION OF LAW The criteria for service connection for a dental disability, claimed as loss of front tooth (tooth #7), for compensation purposes, are not met. 38 U.S.C. §§ 1101, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.381, 4.150, 17.161. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1989 to December 1989, September 2000 to March 2001, May 2003 to February 2004, and October 2005 to August 2007. In addition, he has Active Duty for Training and over 14 years of Inactive Duty for Training. The Veteran has combat experience. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an August 2012 rating decision of the Des Moines, Iowa, Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2017, the Veteran testified before the undersigned during a Board video hearing. A copy of the hearing transcript has been associated with the claims file. The issue of entitlement to service connection for a dental disability for treatment purposes only has been raised by the record, but this issue does not appear to have been adjudicated. Therefore, the Board does not have jurisdiction over it, and it is referred to the RO for appropriate action. Specifically, the RO should refer the claim for dental treatment to the appropriate VA Medical Center. Service connection for loss of front tooth is denied. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1101; 38 C.F.R. § 3.303. Service connection may be granted for a disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In making all determinations, the Board must fully consider all lay assertions of record. A layperson is competent to report on the onset and continuity of observable symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if: (1) the 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board’s duty is to assess the credibility and weight of the evidence. See Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Disability compensation and VA outpatient dental treatment may be provided for certain specified types of service-connected dental disorders. For other types of service-connected dental disorders, the claimant may receive treatment only and not compensation. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150, 17.161. Under 38 C.F.R. § 3.381, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal diseases are to be considered service-connected only for the purpose of establishing eligibility for outpatient dental treatment as provided in 38 C.F.R. § 17.161. Dental disabilities that may be compensable are set forth in 38 C.F.R. § 4.150. They 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. 38 C.F.R. § 4.150, DCs 9900-9916. Here, the Veteran claims service connection for compensation purposes for a dental disability, described in his February 2011 claim as injury to front tooth (7). Review of the evidence of record does not support a finding of any trauma or disease that caused loss of the substance of the body of the maxilla or mandible, resulting in any tooth loss. 38 C.F.R. § 4.150, DC 9913. The Board acknowledges that the Veteran incurred dental trauma and treatment. However, there is no evidence that such trauma caused loss of the substance of the body of the maxilla or mandible, resulting in any tooth loss such that compensation is warranted. Thus, there is no evidence of record that the Veteran has a qualifying current dental disability, which is due to loss of substance of body of maxilla or mandible through trauma or disease such as osteomyelitis. Rather, the evidence of record reflects that the Veteran incurred in-service dental trauma which was treated with a root canal. In October 2020, the Veteran underwent a VA examination. The examination report showed that the Veteran has a dental condition relating to right upper tooth number 7. The examiner found that the loss was not due to loss of substance of body of maxilla or mandible. The loss of tooth was due to trauma; the Veteran was hit in this tooth by a rifle during service. The VA examiner opined that the Veteran’s jaw discomfort would not exist without previous history of trauma and surgical intervention to fix trauma. This examination’s findings were consistent with the Veteran’s lay statements, including in August 2013 and September 2017 testimony recounting the in-service incident and subsequent treatment, and the Veteran’s service treatment records. The Veteran has not presented any competent evidence that he has a dental disability for which service connection for compensation purposes may be granted. The Veteran is competent to report his in-service dental trauma, and there is no evidence that he is not credible in this regard. However, to the extent that the Veteran purports to offer evidence that he has a qualifying dental disability, the Board finds that such statements are not competent, as the diagnosis of these disabilities is a complex medical question. His lay statements as to whether he indeed has a qualifying dental disability are not competent and this lack probative value. Based on the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim of service connection for a dental disability, claimed as loss of front tooth (7), for compensation purposes. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). As such, the benefit-of-the-doubt doctrine is inapplicable and the claimed is denied. 38 C.F.R. § 4.3. REASONS FOR REMAND Service connection for bilateral foot conditions (other than hallux valgus and plantar fasciitis) to include hammer toes, hallux rigidus, pes cavus, hallux limitus, and tailor’s bunion, is remanded. As a general matter, once VA undertakes to provide an examination, it must provide an adequate one or, at a minimum, notify the claimant why one will not be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The June 2019 VA examination is note adequate for the Board to decide this claim. The VA examiner opined that there was not clinical, objective or radiological evidence of hammer toes, hallux rigidus, pes cavus, hallux limitus, Tailor's Bunion, in the examination conducted. However, the VA examiner relied, in part, on diagnostic imaging from July 2012. In December 2020, the Veteran’s representative raised the theory that the Veteran may have developed additional feet conditions since July 2012 proximately due to or aggravated beyond natural progression by service-connected disabilities. The June 2019 VA medical opinion therefore did not consider all raised theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Combee v. Brown, 34 F.3d 1039, 1043–44 (Fed. Cir. 1994). An addendum VA medical opinion addressing secondary service connection is warranted. Update diagnostic imaging of the Veteran’s feet may also be warranted. The matters are REMANDED for the following action: 1. Obtain all outstanding VA clinical records and give the Veteran the opportunity to identify any private treatment records for association with the claims file. All records or responses received must be associated with the claims file. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s bilateral foot conditions (other than hallux valgus and plantar fasciitis) to include hammer toes, hallux rigidus, pes cavus, hallux limitus, and tailor’s bunion, is at least as likely as not proximately due to service-connected disability or aggravated beyond its natural progression by service-connected disability. The VA examiner should obtain updated diagnostic imaging, such as x-ray, reports of the Veteran’s feet or explain why this is not medically necessary in order to provide the a fully informed opinion. If the examiner deems it necessary, a new VA examination should also be provided to the Veteran. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion. Provide a rationale to support the opinion. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. “Aggravated” means any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease, and not due to the natural progress of the nonservice-connected disease. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. The examiner shall explain whether he or she needs additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the question. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James Hekel, 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.