Citation Nr: 21010575 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 17-19 205 DATE: February 25, 2021 REMANDED Entitlement to service connection for a right hand disability is remanded. Entitlement to service connection for a dental injury with residuals to include loss of teeth is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1975 to January 1980. These matters come to the Board of Veterans’ Appeals (Board) from a decision of the Agency of Original Jurisdiction (AOJ). In November 2015, the AOJ issued a rating decision that denied the Veteran’s claims for service connection for a right hand injury with residuals and residuals of a dental injury. The Veteran timely disagreed in an April 2016 Notice of Disagreement (NOD) and perfected his appeal in an April 2017 VA Form 9. In December 2019, a Board hearing was conducted. The hearing transcript has been associated with the Veteran’s file. Then in January 2019, the Board issued a remand for the VA to provide examinations on the Veteran’s teeth and right hand. The Veteran was scheduled for VA examinations on January 18 and April 8, 2020; the record reflects he did not show. Later in April, the AOJ re-adjudicated the Veteran’s claims and continued its denial of service connection for a right hand disability and residuals of a dental injury. In August 2020, the Veteran’s case was returned to the Board. 1. Entitlement to service connection for a right hand disability is remanded. The Veteran contends his right hand disability is related to his service. See April 2017 VA Form 9. He asserts he injured his right wrist around August 1974 while playing softball at Kessler Air Force Base (AFB). See April 2016 Statement in Support of Claim. In the alternative, he contends his right hand injury is secondary to his service-connected right wrist injury. See Transcript dated December 2019 at 3. He reported pain from his right thumb upwards to his wrist bone. Id. at 6-7. Although the Board regrets the delay, the Veteran’s claim must be remanded for a new medical opinion before the Board is able to decide on the merits. The record shows the Veteran receives Social Security Administration (SSA) disability benefits and it is unclear whether the AOJ attempted to obtain potentially relevant documents concerning those benefits. Also, the Veteran should be afforded another opportunity to appear for a VA disability examination. The VA has a duty to assist claimants and must make “reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for benefits.” 38 U.S.C. § 5103A(a)(1). That includes a duty to attempt to obtain SSA records when it has actual notice that the Veteran is in receipt of SSA disability benefits. 38 C.F.R. § 3.159(c). But that duty is limited to obtaining relevant SSA records. Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010). They are relevant to a claim when either (1) there is a SSA decision pertaining to a medical condition related to the one for which the veteran is seeking service connection or (2) there are specific allegations “giv[ing] rise to a reasonable belief” that the SSA records may pertain to the claimed disability. Id. There is also a duty on the part of the Veteran to cooperate with the VA in developing a claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that “[t]he duty to assist is not always a one-way street”). When a Veteran misses a scheduled VA examination, the Board must consider (1) whether the examination was necessary to establish entitlement to the benefit sought, and (2) whether the veteran lacked good cause to miss the scheduled examination. 38 C.F.R. § 3.655(a). Examples of good cause include, but is not limited to illness, hospitalization, and death of a family member. When a Veteran fails to report for a scheduled examination for an original claim without good cause, the Board can either deny the claim or rate it based on the evidence of record, depending on the type of claim. 38 C.F.R. § 3.655(b). Turning to the Veteran’s service medical records, they note several injuries to the right hand: an August 2, 1974, record notes a right hand injury while playing baseball; an August 17, 1974, record notes a cast was placed on his hand following an injury while playing baseball; an April 1, 1976, record notes the Veteran hit his right hand on a door with swelling at his right little finger; an April 30, 1976, record notes a baseball hit his right middle finger; and an April 10, 1979, record notes a softball hit one of the fingers of his right hand. During the Veteran’s December 2019 Board hearing, the Veteran tried to distinguish between the symptoms associated with his service-connected right wrist disability and those he associates with his right hand disability: he testified that observed pain from his right thumb upwards to his wrist bone. Id. at 6-7. The record reflects the Veteran was scheduled for a VA disability examination on April 8, 2020 and did not show. There is correspondence to the Veteran in the record confirming the Veteran was notified of his appointment. Later, in May, the Veteran informed the VA that he received an appointment letter but, when he tried to confirm the appointment, a VA representative advised him to cancel it because the VA representative could not confirm it was a valid appointment. See May 2020 Statement in Support of Claim. Also, the record reflects the AOJ confirmed the Veteran has been receiving SSA disability benefits; however, the particular disability he was granted benefits for is not noted in that confirmation. See March 2020 SSA Inquiry Results at 2. Nor is there any document in the record that helps determine the physical or mental condition(s) that led to his award of SSA disability benefits. With respect to whether the Veteran had good cause for failing to show for his VA disability examination on April 8, 2020, the Veteran has personal knowledge of the conversation he had with a VA representative. And he is competent to report it. Layno v. Brown, 6 Vet. App. 465, 467-70 (1994). He asserts his conversation with that representative led him to believe he was not scheduled for a disability examination on April 8, 2020. Considering he was relying on the representations of someone in a position to confirm that appointment, he had good cause for failing to show for it. So, he should be afforded another opportunity to appear for a VA disability examination. Accordingly, a remand is warrant for the AOJ to obtain relevant SSA documents and provide the Veteran a VA disability examination. 2. Entitlement to service connection for a dental injury with residuals to include loss of teeth is remanded. The Veteran contends he lost, at least, two teeth due to service trauma. He contends he lost, at least, one of his teeth because a dentist left a piece of a medical instrument in his mouth while performing a root canal. See April 2016 Statement in Support of Claim. And, two other teeth broke during similar procedures. Id. The Veteran also contends that he lost a tooth when he was hit on the side of the face during service; he claims a dentist confirmed one of his teeth was knocked out. See Transcript dated December 2019 at 7. Although the Board regrets the delay, the Veteran’s claim must be remanded before the Board decides on the merits. This is because the Veteran should be afforded another opportunity to appear for a VA disability examination. Under 38 U.S.C. § 1712(a)(1)(C), service trauma is “an injury or wound produced by an external physical force during the performance of military duties and does not include the intended result of proper medical treatment.” Nielson v. Shinseki, 607 F.3d 802, 804 (Fed. Cir. 2010). Unintended results of medical treatment due to military negligence could also be “service trauma.” Id. at 808. When a detailed report of dental examination is essential for a determination of eligibility for benefits, dental examinations may be authorized for those claimants requiring examination to determine whether the dental disability is service connected. 38 C.F.R. § 17.160. The Veteran’s service dental records show that, in October 1974, a root canal was performed on tooth number 3. They also note four other missing teeth: numbers 1, 16, 19, 30; tooth number 20 was fractured. His service dental records note procedures were performed on numbers 1 and 16 (two wisdom teeth). There is no clearly written documentation pertaining to treatment of procedures for numbers 19, 20, and 30. See Service Dental Records. In April 2016, the VA received a statement from the Veteran wherein he asserts that, sometime between June and August 1974, he went to see military dentists due to tooth pains. The dentist decided on a root canal. And during the procedure, one of the instruments (a root canal file) broke off inside the root; the dentist did not remove it and the Veteran left the office with the piece still in his root canal. Then, after relocating to another base, another dentist removed the instrument/file, which weekend the rest of the tooth. Later, that tooth broke, resulting a partial and sharp tooth. See April 2016 Statement in Support of Claim. Then, during his December 2019 Board hearing, the Veteran reported a different account of, at least, one missing tooth. He testified he was doing an activity during service and he was hit on the side of the face. He went to dental and discovered one of his teeth was knocked out. He did not indicate which tooth he lost. See Transcript dated December 2019 at 7. The record reflects the Veteran did not appear for a scheduled VA dental examination on January 18, 2020. There is no correspondence to the Veteran in the record confirming the Veteran was notified of his appointment. Later, in May, the Veteran informed the VA he never received an appointment letter for a dental examination; so, he did not show because he was unaware of it. See May 2020 Statement in Support of Claim. Turning to the Veteran’s claim for disability benefits, the Veteran is competent to report whether he saw any correspondence from the VA informing him of a dental appointment. Layno, 6 Vet. App. at 467-70. But he is not competent to report if an appointment letter was sent to his addressed but never delivered. In this case, he indicated he never saw any correspondence from the VA informing him of his dental examination. Considering there is no record one was sent to him, the Board finds his statement credible. Also, the Board cannot determine whether the Veteran lost his teeth due to service trauma, to include unintended result of medical treatment due to military negligence or malpractice, without a dental examination. So, he should be afforded another opportunity to appear for a VA dental examination. Accordingly, a remand is warrant for the AOJ to provide the Veteran a dental examination. The matters are REMANDED for the following action: 1. The AOJ should send a request to the Social Security Administration (SSA) for copies of relevant SSA records. Relevant records have been defined as “those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate” the claim. In this case, that is his claim for (1) a right hand disability and (2) dental injury with residuals to include loss of teeth. If the requested records are found to be unavailable, this should be noted in the claims file and the Veteran should be notified that the AOJ could not obtain any of his records from SSA. 2. After records development is completed, the claims files should be sent to an appropriate examiner for a VA examination for his right hand disability. 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(s) below. The examiner is asked to provide a response to the following: a. Is it at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran’s right hand disability was incurred in or is otherwise related to his service? b. Is it at least as likely as not (i.e. a 50 percent probability or greater) that Veteran’s right hand disability was proximately caused by the Veteran’s service-connected right wrist healed fracture with degenerative arthritis? c. Is it at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran’s right hand disability was aggravated, i.e., worsened beyond its natural progression, by the Veteran’s service-connected right wrist healed fracture with degenerative arthritis? d. If the Veteran is found to have arthritis at the right hand, is it at least as likely as not that it (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? The examiner, in coming to his or her conclusion, is asked to comment on the following: i. Discuss the Veteran’s service medical records dated August 2, 1974, showing he was treated for a right hand injury, incurred while playing baseball; April 1, 1976, noting he hit his right hand on a door and there was swelling at his right little finger; April 30, 1976, noting a baseball hit his right middle finger; and an April 10, 1979, record noting a softball hit one of the fingers of his right hand. ii. Discuss his December 2019 report of pain from his right thumb upwards to his wrist bone. Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? 3. After records development is completed, the claims files should be sent to an appropriate examiner for a VA examination for dental injury with residuals to include loss of teeth. The examiner must review the claims file. The examiner is asked to provide a response to the following: a. Please identify all dental disabilities. In so doing, it should be noted that the record shows loss of teeth numbered 1, 16, 19, and 30. They show tooth number 20 is fractured. 4. Is it at least as likely as not (a 50 percent or greater probability) that the any diagnosed oral disability was incurred in or related to his active service? a. Is it at least as likely as not (i.e. a 50 percent probability or greater) that the military dentist failed to exercise the degree of care that would be expected of a reasonable dentist in extracting teeth numbered 1, 16, 19, 20 or 30, during service; and, if so, b. whether it is at least as likely as not (i.e., there is a 50 percent or greater probability), such failure proximately caused the loss of teeth numbered 1, 16, 19, or 30. The examiner, in coming to his or her conclusion, is asked to comment on the following: i. Discuss the Veteran’s report that the military dentist who performed a root canal on his tooth left a root canal file in his tooth during the procedure. He reports that, later in time, another military dentist had to remove the file. His service dental records show a root canal was performed on tooth number 3 on October 25, 1974. ii. Discuss the Veteran’s report that the root canal file weakened his tooth, which caused it to break at a later time during service. iii. Discuss his report that two other teeth were lost due to procedures similar to the root canal performed on October 25, 1974. His service dental records show, at least four teeth are missing: numbers 1, 16, 19, and 30. iv. Address his report that, during service, he was hit on the side of his face and a dentist told him that strike caused a loss of a tooth. v. Discuss whether his service dental records indicate trauma to his teeth during service. Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the   Veteran’s reports generally inconsistent with medical knowledge or implausible? DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dean, Michael S. 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.