Citation Nr: 21008528 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 12-03 629 DATE: February 17, 2021 REMANDED Entitlement to service connection for kidney stones is remanded. Entitlement to service connection for a sleep disorder is remanded. Entitlement to service connection for a skin disorder, other than pseudofolliculitis barbae (PFB), is remanded. Entitlement to service connection for residuals of dental surgery is remanded. REASONS FOR REMAND The Veteran had active duty service from October 1971 to September 1975. In January 2017, he testified during a Board hearing before the undersigned. A transcript is of record. In June 2017, the Board of Veterans’ Appeals (Board) denied service connection for kidney stones, sleep disorder, and a skin disorder, other than PFB, which the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). The Board remanded the matters of residuals of circumcision and dental surgery in June 2017 and October 2018 for additional development. In March 2019, the Court issued an order that vacated the 2017 Board decision and remanded the issues of service connection for kidney stones, sleep disorder, and skin disorder, other than PFB, for compliance with its Memorandum Decision. In November 2019, the Board denied the service connection for kidney stones, sleep disorder, a skin disorder, other than PFB, and dental surgery residuals, which the Veteran appealed to the Court. In a September 2020 Order, pursuant to a Joint Motion for a Partial Remand (JMPR) filed by the parties, the Court vacated and remanded the 2019 decision for compliance with the JMPR. The Board’s November 2019 decision also denied entitlement to service connection for residuals of circumcision. The JMPR expressly states that the Veteran is not appealing the Board’s denial of that issue and the Court dismissed it. Pederson v. McDonald, 27 Vet. App. 276, 285 (2015); see also Cacciola v. Gibson, 27 Vet. App. 45 (2014). Therefore, service connection for residuals of circumcision will not be further discussed. Carter v. Shinseki, 26 Vet. App. 534, 541 (2014) (a joint motion for remand identifies clear instructions to the Board as to what actions it is required to take on remand), vacated on other grounds sub nom. Carter v. McDonald, 794 F.3d 1342 (2015). kidney stones sleep disorder In the JMPR the Veteran and the VA Secretary (the parties) agreed that a remand was warranted based on the Board’s determination that there was no corroborative objective evidence on file establishing that the Veteran sought or required treatment or evaluation for kidney stones or sleep problems until at least 13 years after service. They referred to his January 2017 testimony that: (1) he had been receiving treatment for his kidney stones for over 30 years, (2) he first went to the hospital for kidney stones between 1977 to 1978, (3) he realized years later that he saw “salt and pepper stones” pass while still in the military but did not know what they were at the time and thus did not seek medical attention, and (4) that he could not sleep in service, which was exacerbated when he went to Guam because of the time zone change. The parties noted the Board determination that the lack of corroborating contemporaneous evidence in service records outweighed the Veteran’s present recollection to the contrary. The parties ultimately concluded that the Board erred in finding the Veteran’s statements not credible because it’s finding was premised, in part, on a medical determination that it was not competent to make. Citing Colvin v. Derwinski, 1 Vet. App. 171 (1991), they noted that the Board’s failure to point out any internal inconsistencies in the Veteran’s lay statements running afoul of the prohibition on making independent medical judgments. skin disorder, other than PFB In the JMPR, the parties agreed that the Board erred by denying the claim for a skin disorder, other than PFB, without providing any reasons or bases regarding whether a medical opinion was necessary pursuant to McLendon v. Nicholson, 20 Vet. App. 79 (2006). They noted that the Board determined there was a history of skin problems/disorders both during and after service but there are no examinations of record provided by a dermatologist (or other skin expert). residuals of dental surgery In the JMPR the parties agreed that a remand was warranted on the basis that the development requested in the Board’s prior remands has not been completely performed. They noted that in both instances VA examiners were instructed to identify any residuals experienced by the Veteran that are related to the in-service dental surgery and to explain whether they constituted a usual effect or intended result of the treatment. The examiners were also asked to address a January 2017 private dental statement indicating that the Veteran needed constant periodontal maintenance treatment of his teeth and supporting structure as a result of a periodontal condition which was exacerbated by the edentulous areas in both the maxillary and mandibular arches. In accordance with the Board’s remand directives, the Veteran underwent VA dental examinations in August 2017 and July 2019. The August 2017 examiner provided a diagnosis of periodontal disease and indicated that the Veteran’s shifting teeth and bleeding gums were most likely the result of a periodontal condition unrelated to service. The July 2019 examiner reported a diagnosis of periodontal disease and partial loss of teeth due to an unspecified cause. The examiner opined that there was no diagnosis of dental surgery residuals beyond the expected or intended effects of the in-service periodontal surgery or the extractions of wisdom teeth #1 and #16. The examiner did not otherwise comment on the Veteran’s reports of pain in the upper left side tooth or that his uvula had recently been removed due to problems with his mouth reformation and tongue. However, the parties determined that the 2019 VA examiner failed to consider the private dental statement regarding exacerbation of the Veteran’s ongoing periodontal condition by the edentulous [(lacking teeth)] areas and did not explain whether this constituted a usual effect or intended result of the treatment. They also noted that the examiner failed to address whether the Veteran’s uvula had been removed and whether such removal was a residual of the inservice dental surgery and constituted a usual effect or intended result of that surgery. The parties also noted the examiner mistakenly attributed the conclusion from the 2017 VA opinion to the Veteran’s private dentist. Citing Reonal v. Brown, 5 Vet. App. 458, 461 (1993), the parties stated that an opinion based upon an inaccurate factual premise has no probative value. The dental issue must therefore be remanded again to ensure compliance with the prior Board remands. To that end, the Board points out that the regulations governing dental claims make a fundamental distinction between replaceable missing teeth and teeth lost as a result of loss of substance of body of maxilla or mandible due to trauma or disease such as osteomyelitis. The loss of the alveolar process as a result of periodontal disease is not disabling for VA purposes. See 38C.F.R. §§3.381, 4.150; Simington v. West, 11 Vet. App. 41, 44 (1998). In other words, absent a demonstration of dental trauma, service connection may be considered solely for the purpose of determining entitlement to dental examinations or outpatient dental treatment. See Woodson v. Brown, 8 Vet. App. 352, 354 (1995). The Board also notes that “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. Nielson v. Shinseki, 607 F.3d 802 (Fed. Cir. 2010) (holding that service trauma is defined as an injury or wound produced by an external physical force during a service member’s performance of military duties and does not include intended results of proper medical treatment provided by the military). However, the Federal Circuit elaborated in Nielson that an unintended result of medical treatment due to military negligence or malpractice could be “service trauma” pursuant 38 U.S.C. § 1712(a)(1)(C). During the course of the appeal, the Veteran has consistently reported that teeth extractions and the restructuring of bones in his mouth during service have created openings and caused his remaining teeth to shift over the years. Since then he has required frequent dental follow-up to avoid infections and has had his uvula removed due to problems caused by the inservice dental work. At this point, and as best as can be discerned from his contentions, the Veteran believes that the removal of his teeth constituted dental trauma from military negligence or malpractice. Based on the foregoing, and consistent with the Court’s September 2020 Order, the Board finds that these matters should be remanded to obtain the additional medical assessments and opinions necessary to adequately address the claims. The matters are REMANDED for the following action: 1. Ask the Veteran to identify the names of any private medical facility or medical care providers who have provided relevant treatment over the past 30 years, as referenced in his January 2017 hearing testimony. The Board is particularly interested in clinical records from the Veteran’s treating urologist, Dr. Schoborg at Atlanta Urological Group and from Grady Hospital in Atlanta dated between 1977 and 1978 again as referenced in his 2017 Board hearing testimony. The Board is also interested in dental records from Dr. Washington, at Washington Dental Care and any records related to removal his uvula. The Veteran should provide as much information as possible that will assist in locating these records, including the inclusive dates of treatment and the full address of the medical facilities and/or providers. He should be requested to execute and return all needed releases or authorizations to obtain such records. If any records are unavailable, a negative response must be received. 2. Schedule the Veteran for appropriate VA examinations to determine the onset and etiology of his kidney stones, sleep disorder, and skin disorder, other than PFB. The examiners should elicit from the Veteran a detailed history regarding the onset and progression of relevant symptoms, and the examination reports should include a discussion of his documented medical history. Any medically indicated testing should be accomplished. A rationale for all requested opinions shall be provided. If an examiner cannot render an opinion without resorting to mere speculation, a full and complete explanation for why an opinion cannot be rendered should be provided. With respect to the kidney stones a) The examiner should provide an opinion as to whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran’s kidney stones are causally related to military service. The examiner is advised that a lack of documentation of treatment in the service records or a lack of formal diagnosis of kidney stones during service cannot be the only basis by which to reject a possible nexus to service. b) In providing the requested opinion, the examiner must discuss: 1) the objective medical findings in the service treatment records; 2) the Veteran’s January 2017 testimony that he saw “salt and pepper stones” pass while still in the military but did not know what they were at the time and thus did not seek medical attention; and 3) his testimony that he first went to the hospital for kidney stones in the late 1970s and been receiving treatment for his kidney stones for over 30 years. c) The examiner should also discuss the July 2016 Kidney DBQ from the private urologist which opines that the Veteran’s military service likely caused his almost 30-year battle with kidney stones. With respect to the sleep disorder a) The examiner should identify the Veteran’s current sleep disorder and state whether it at least as likely as not (a probability of 50 percent or greater) had its onset during military service or is otherwise causally related to service. The examiner is advised that a lack of documentation of treatment in the service records or a lack of formal diagnosis of sleep disorder during service cannot be the only basis by which to reject a possible nexus to service. b) In providing the requested opinion, the examiner must discuss: 1) the objective medical findings in the service treatment records; and 2) the Veteran’s January 2017 testimony that he could not sleep in service, which was exacerbated when he went to Guam on a TDY assignment because of the time zone change. c) The examiner should also discuss the June 2016 Sleep Apnea DBQ from the private physician stating the Veteran’s 35-year history of interrupted sleep-wake cycle disorder is most likely related to his military service. With respect to the skin disorder, other than PFB a) The examiner should identify all current skin disorders then state whether any diagnosed disorder at least as likely as not (a probability of 50 percent or greater) had its onset during military service or is otherwise causally related to service. b) In providing the requested opinion, the examiner must discuss: 1) the objective medical findings in the service treatment records including the treatment for penile sebaceous cysts in August 1974; 2) the post-service diagnoses of tinea pedis in 2007 and MSSA/MRSA skin infections in 2009; and 3) the Veteran’s January 2017 testimony that he that he developed skin irritation/jungle rot in the groin due to the humid environment while stationed in Guam. 3. Forward the file to the VA dental examiner that provided the opinion in July 2019, if available. Otherwise, provide the record to another VA examiner who will have an opportunity to review the complete file. The need for an additional examination is left to the discretion of the medical professional offering the addendum opinion. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the following: * undated service Panorex dental X-rays * Service dental entries dated in July 1974 reflecting root canal therapy on tooth #14 * Service dental entries dated in August 1974 reflecting repeat root canal therapy on tooth #14 * An August 9, 1974 entry reflecting periodontal surgery conducted on teeth #12-16; inoperable defect on teeth #13-4, osteoplasty and bone graft; and extraction of tooth #16 *A September 11, 1974 entry reflecting extraction of tooth #1 * The August 1975 separation dental chart reflecting missing teeth #1, #16, #19 and #30. * A post-service September 1977 VA examination, where the examiner reported that all the Veteran’s teeth were present except for a portion of the left upper third molar that was absent and dental repair work that looked “quite good” * The January 2017 private dental statement indicating that the Veteran needed constant periodontal maintenance treatment of his teeth and supporting structure as a result of a periodontal condition which was exacerbated by the edentulous areas in both the maxillary and mandibular arches * The August 2017 examination report reflecting that the Veteran’s shifting teeth and bleeding gums were most likely the result of a periodontal condition * The July 2019 examination report reflecting diagnoses of periodontal disease and missing teeth #1, #16, #14, #17, and #32. In light of an additional review of the record the examiner should determine, to the extent feasible, which teeth were extracted during service. For teeth #1 and #16, as well as any other teeth found to be extracted during service, the examiner is asked to opine as to whether negligence or malpractice was involved, such that the loss of teeth constituted “service trauma” under Nielson. (If it is not possible to identify which teeth were extracted during service, this opinion should be provided regarding all teeth noted to be missing at discharge). In addition, the examiner should address Dr. Washington’s statement regarding exacerbation of the Veteran’s periodontal condition due to the loss of teeth and address the significance, if any of the Veteran’s recent report that his uvula had been removed. 4. Thereafter, readjudicate the claims remaining on appeal. If any decision remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case, and provide them an opportunity to respond. Thereafter, return the case to the Board, if otherwise in order. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Bryant, Jeana R 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.