Citation Nr: 21011071 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 14-02 230 DATE: February 26, 2021 ORDER Entitlement to service connection for dental disability for compensation purposes is denied. Entitlement to service connection for left ear hearing loss is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had any dental symptoms recognized as a disability for VA compensation purposes at any time during or approximate to the pendency of his claim. 2. The Veteran’s left ear hearing loss did not have its onset in service, did not manifest to a compensable degree within the first post-service year, and the disability is not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for dental disability for compensation purposes are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.381, 4.150. 2. The criteria for service connection for left ear hearing loss are not met. 38 U.S.C. §§ 1101 (3), 1110, 1112, 1113, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1968 to April 1970. These matters initially came before the Board of Veterans’ Appeals (Board) from a November 2010 rating decision. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a September 2017 hearing and a transcript of the hearing has been associated with his claims file. In January 2018 and February 2020, the Board remanded these matters for further development. Specifically, the Board instructed the agency of original jurisdiction (AOJ) to ask the Veteran to identify any outstanding treatment records and to complete the appropriate authorization form to allow VA to obtain any outstanding private medical records (to include records from Avere Healthcare Clinics), obtain all outstanding VA treatment records, obtain the Veteran’s relevant Social Security Administration (SSA) records, afford the Veteran a VA examination to assess the nature of his claimed dental disability and to obtain a medical opinion as to whether any such disability is related to service, and obtain a medical opinion as to whether his left ear hearing loss is related to service. Pursuant to the Board’s remand, the Veteran was asked to identify any outstanding treatment records and to complete the appropriate authorization form to allow VA to obtain any outstanding private medical records (to include records from Avere Healthcare Clinics) by way of letters dated in March 2018 and December 2019. Copies of the authorization forms (VA Forms 21-4142a and 21-4142) were included with the letters. Moreover, all available outstanding VA treatment records were obtained and associated with the claims file, all relevant outstanding SSA records were obtained and associated with the claims file, a VA dental examination was conducted in July 2018, and medical opinions were most recently provided in August and September 2020 as to whether the Veteran’s claimed left ear hearing loss was related to service. As explained in more detail below, the Board finds the August and September 2020 opinions to be adequate and of substantial probative value. Therefore, the AOJ substantially complied with the Board’s remand instructions. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). As a final preliminary matter, the Board points out that it appears from a review of the claims file that some of the Veteran’s service treatment records may be unavailable. Destruction of service records creates a heightened duty on the part of VA to consider the applicability of the benefit of the doubt doctrine, to assist the claimant in developing the claim, and to explain its decision. Cromer v. Nicholson, 19 Vet. App. 215 (2005). Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a) (e.g., organic diseases of the nervous system, such as sensorineural hearing loss). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, such chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). Although entitlement to service connection on any of the presumptive bases noted above may not be established, a veteran is not precluded from establishing service connection on a direct basis. See 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). 1. Entitlement to service connection for dental disability for compensation purposes Service connection for dental disabilities for compensation purposes is only available for dental disabilities that are the result of osteomyelitis or osteoradionecrosis, or due to the loss, malunion, or limited motion of the mandible, maxilla, ramus, condyloid process, or hard palate, or due to the loss of teeth due to loss of substance of the upper or lower jaw. 38 C.F.R. § 4.150. Compensation is available for loss of teeth only if such is due to loss of substance of body of maxilla or mandible. See Simmington v. West, 11 Vet. App. 41 (1998). Compensation is not available for treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, or periodontal disease. 38 C.F.R. § 3.381. In this case, the Veteran contends that he has current dental disability that is related to injury sustained in service. Specifically, he has reported that he lost teeth when he was kicked in the mouth and that he has continued to experience dental pain in the years since service. The question for the Board is whether the Veteran has current dental disability for compensation purposes that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board finds, for the following reasons, that the Veteran does not experience any dental symptoms recognized as a disability for VA compensation purposes, and has not experienced such symptoms at any time since his service connection claim was received in November 2009 or prior thereto. Cf. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran’s medical records (including his service treatment records) reflect that he has been treated for various dental problems. While he is competent to report his current dental symptoms and the Board has no legitimate basis to challenge the credibility of his contentions, he has not reported and his treatment records do not indicate the presence of or treatment for any of the dental disabilities specified in 38 C.F.R. § 4.150 at any time during the claim period or prior thereto. In particular, a VA dental examination was conducted in July 2018. The examiner who conducted the examination diagnosed the Veteran as having loss of teeth. The examiner explained that the Veteran was kicked in the mouth in service and this resulted in the loss of all his upper teeth. His teeth were pulled, and he was given an “upper partial.” His bottom teeth were extracted due to decay and calculi buildup. He continued to experience upper jaw pain. Examination revealed that the Veteran was missing all his teeth and that he had existing upper partial and lower dentures, but the examination was otherwise within normal limits. Moreover, the examiner who conducted the July 2018 examination did not indicate that the Veteran had lost any part of the mandible (to include the ramus), maxilla, or hard palate, that he had any injury resulting in malunion or nonunion of the mandible or maxilla, that there was loss of teeth due to loss of substance or body of maxilla or mandible without loss of continuity, or that the Veteran was experiencing or had ever experienced any osteomyelitis or osteoradionecrosis. In sum, there is no evidence that the Veteran has experienced dental disability for VA compensation purposes at any time during the claim period. As the evidence does not show any current dental problems that are the result of osteomyelitis or osteoradionecrosis, are due to the loss, malunion, or limited motion of the mandible, maxilla, ramus, condyloid process, or hard palate, or are due to the loss of teeth due to loss of substance of the upper or lower jaw, the Veteran is not shown to have dental disability subject to compensation under the laws and regulations administered by VA. Thus, although he has reported dental problems, the Board is bound by these limitations as to what constitutes a dental disability for VA compensation purposes and has no discretion in this regard. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1110. Thus, where, as here, the evidence establishes that the Veteran does not have the disability for which service connection is sought, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353, 1356 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As such, service connection for dental disability for compensation purposes is not warranted because there is no evidence of current dental disability upon which to predicate such an award. Accordingly, the Board finds that service connection for dental disability for compensation purposes is not warranted. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in this instance. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for left ear hearing loss Hearing loss is considered to be a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition thresholds using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The question for the Board is whether the Veteran has current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board finds, for the following reasons, that, while there is evidence that the Veteran has current left ear hearing loss as defined by VA, the claimed hearing loss is not shown to have had its onset in service or to be otherwise related to a disease or injury in service. The report of an August 2020 VA audiological examination shows the Veteran has a current diagnosis of left ear sensorineural hearing loss as defined by VA. See 38 C.F.R. § 3.385. He contends that his hearing loss is related to his exposure to loud noise in service associated with military aircraft while serving aboard the flight deck of the USS Kitty Hawk and at Marine Corps Air Station Miramar (Miramar). He also contends that his left ear hearing loss is related to his exposure to a blast wave when a military aircraft crashed and exploded at Miramar in 1969. He is competent to report in-service noise exposure and exposure to a blast wave from an exploding aircraft. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Further, his DD 214 indicates that his military occupational specialty was an aircraft mechanic and that he was stationed at Miramar. Newspaper articles submitted by the Veteran and his service personnel records confirm that a military aircraft crashed and exploded at Miramar in December 1969 while the Veteran was stationed at that location. Also, there is nothing to explicitly contradict his reports and his reports are consistent with the evidence of record and the circumstances of his service. Therefore, the Veteran’s reports of in-service noise exposure and exposure to a blast wave from an exploding aircraft are credible and such in-service injuries are conceded. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.303 (a) (each disabling condition for which a veteran seeks service connection must be considered on the basis of the places, types, and circumstances of his service, as shown by the evidence). The Veteran has generally indicated that his left ear hearing loss had its onset in service and has continued in the years since that time. For example, he reported on an October 2009 “Veteran’s Application for Compensation and/or Pension” form (VA Form 21-526) that his hearing loss began in December 1968 and that he had been receiving treatment for his hearing loss since that time. The August 2020 VA audiological examination report reflects that the Veteran reported that he participated in “combat activity” in service. Where a veteran engaged in combat, satisfactory lay evidence that an injury or disease was incurred in service will be accepted as sufficient proof of service connection where such evidence is consistent with the circumstances, conditions, or hardships of service. 38 U.S.C. § 1154 (b). The combat rules not only reduce the evidentiary burden for establishing in-service injury, but also allow a combat veteran to use “satisfactory lay or other evidence” to establish that he incurred the disability itself in service, even in cases where “there is no official record” that such injury or disability occurred. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012). Section 1154 (b) does not, however, eliminate the need for evidence of a nexus; it merely reduces, for veterans who have engaged in combat with the enemy, the burden of presenting evidence of incurrence or aggravation of an injury or disease in service. Collette v. Brown, 82 F.3d 389, 392 (Fed.Cir.1996) (“Section 1154(b) does not create a statutory presumption that a combat veteran’s alleged disease or injury is service-connected”). While the section 1154(b) rules can assist a claimant in showing both the in-service injury element and incurrence of the disability itself, Reeves, 682 F.3d at 999, in this case the lay evidence does not tend to show in-service incurrence of left ear hearing loss. As explained in more detail below, there is no credible evidence that the Veteran experienced any left ear hearing loss in service. Also, assuming without deciding that the Veteran engaged in combat during service, the claim of service connection for left ear hearing loss must nevertheless be denied, as explained below. The Veteran is competent to report the history of his claimed left ear hearing loss (including a continuity of symptomatology in the years since service). However, his reports must be weighed against the other evidence of record and their credibility must be assessed. See Jandreau, 492 F.3d at 1377; Buchanan, 451 F.3d at 1337. There is no evidence of any complaints of or treatment for left ear hearing loss in the Veteran’s service treatment records and his March 1970 separation examination was normal other than for scarring. Also, the earliest clinical evidence of left ear hearing problems following service is an April 2009 VA primary care note, which reveals that he was experiencing decreased hearing. There is no evidence of any earlier treatment for left ear hearing problems following service. The Board acknowledges that there is lay evidence of earlier left ear hearing problems in that the Veteran has suggested a continuity of hearing loss symptomatology in the years since service. As explained below, however, the Board finds that the Veteran’s reports as to the history of his claimed left ear hearing loss (to include his reports of a continuity of symptomatology in the years since service) are not credible. The absence of any clinical evidence of left ear hearing problems for nearly four decades after the Veteran’s separation from active service in April 1970, along with the inconsistent statements noted below, is one factor weighing against a finding that his current left ear hearing loss was present in service or in the year or years immediately after service. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (the Board may consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the veteran has not complained of the malady at issue).” Moreover, the Veteran has provided information and statements which are inconsistent with his reports of a continuity of left ear hearing loss symptomatology in the years since service. As explained above, he has reported that his hearing loss had its onset in service and that he has received continuous treatment for his hearing loss in the years since service. However, he reported during a May 2010 VA audiological examination that his hearing difficulty began 10 to 15 years prior to the May 2010 examination. He reported during a February 2011 VA audiology consultation that he had been experiencing “difficulty hearing for the last 20 years.” Also, he reported during the September 2017 Board hearing that he first began to notice difficulty hearing approximately 4 to 5 years after his separation from service. In light of the absence of any evidence of complaints of or treatment for left ear hearing problems in the Veteran’s service treatment records, the fact that his March 1970 separation examination did not reflect any left ear hearing abnormalities, the absence of any clinical evidence of left ear hearing problems for nearly four decades following his separation from service in April 1970, and the information and statements provided by the Veteran that are inconsistent with his reports of a continuity of left ear hearing loss symptomatology in the years since service, the Board concludes that his reports concerning the history of his claimed left ear hearing loss (including any reports of a continuity of symptomatology in the years since service) are not credible. The audiologist who conducted the May 2010 VA audiological examination opined that the Veteran’s hearing loss was not likely (“less likely as not”) caused by or a result of military noise exposure. The examiner reasoned that the Veteran’s hearing was within normal limits in service with no suggestion of any significant hearing threshold shifts. Also, the Veteran reported during the May 2010 examination that his hearing difficulty began 10 to 15 years prior to the May 2010 examination, but he separated from service approximately 40 years prior to the examination. The audiologist who conducted a July 2018 VA audiology examination opined that the Veteran’s left ear hearing loss was not likely (not “at least as likely as not”/“50 percent probability or greater”) caused by or a result of service. The examiner reasoned that a significant threshold shift in service could not be established for the left ear, and that the onset of the Veteran’s tinnitus did not coincide with service. Therefore, despite conceded noise exposure, it was not likely (“less likely than not”) that the Veteran’s left ear hearing loss was due to military noise exposure. The July 2018 examiner also opined that the Veteran’s left ear hearing loss was not likely (“less likely than not”) proximately due to or the result of his exposure to a blast wave from an aircraft explosion. The examiner reasoned that noise-induced hearing loss may result from the cumulative effects over time related to sustained exposure to hazardous noise levels. However, it may also result from an acute exposure to an event that causes acoustic trauma (e.g., an aircraft explosion). Without the benefit of evaluations conducted shortly prior to and after the traumatic event, it could not be determined whether the damage that occurred during military service resulted over time from sustained exposure or whether it was specifically related to an event of acoustic trauma. The actual etiology may be either of the above, or the combined effects of both. However, regardless of whether there was blast wave trauma or sustained exposure trauma, there was no evidence to support service connection for the left ear. This was due to both the absence of in-person shifts and the reported onset of tinnitus occurring significantly after the Veteran’s separation from service. The audiologist who conducted the August 2020 VA audiological examination opined in the August 2020 examination report and in a separate September 2020 opinion that the Veteran’s left ear hearing loss was not likely (not “at least as likely as not”/“50 percent probability or greater”) caused by or a result of an event in service. The examiner reasoned that the Veteran’s military occupational specialty (MOS) was an aircraft mechanic, which had a high potential for hazardous noise exposure. He was exposed to general noise from the flight deck, jet engines, catapults and arresting gear, small arms, Tomahawks, mortars, and bombs. Also, there was an incident when he was about 100 yards from a plane crash. He wore earmuffs, but he did not feel that they were very effective. When comparing the entrance audiogram from March 1968 and the exit audiogram from March 1970, there was no hearing loss or significant threshold shifts in the left ear. Also, there were no reported complaints of hearing loss within a year of his separation from service. Therefore, the Veteran’s left ear hearing loss was not likely (“less than likely”/“less than 50 percent”) caused by or a result of an event in military service. The May 2010 and July 2018 opinions are both of limited probative value because they only address whether the Veteran’s left ear hearing loss was related to noise exposure in service. The examiners did not specifically address whether the Veteran’s hearing loss was the result of his exposure to a blast wave from an exploding aircraft (as opposed to the noise associated with the aircraft explosion). The August and September 2020 opinions, by contrast, are based upon an examination of the Veteran, a review of his treatment records, and consideration of his reported history, and they are accompanied by specific rationales that are consistent with the evidence of record and which acknowledge both the Veteran’s noise exposure in service and his exposure to an aircraft which exploded in his vicinity. Therefore, the August and September 2020 opinions are adequate and entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Moreover, lay evidence may be competent on a variety of matters concerning the nature and cause of disability. However, the dispositive question presented in this case (i.e., whether any relationship exists between the Veteran’s claimed left ear hearing loss and service, to include noise exposure and exposure to a blast wave from an exploding aircraft in service) is a question as to internal medical processes which extend beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. See Jandreau, 492 F.3d at 1377 (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). An opinion as to whether there is a link between the Veteran’s left ear hearing loss and service, where there is no evidence of any left ear hearing loss for decades after service, is one requiring specialized knowledge and testing to understand the complex nature of the body systems. The Veteran has not indicated that he has such experience. His opinion on the question of nexus is therefore not competent evidence in this instance. There is no other evidence of a relationship between the Veteran’s left ear hearing loss and service, and neither he nor his representative have alluded to the existence of any such evidence. Thus, the preponderance of the evidence is against a finding that the Veteran’s left ear hearing loss had its onset in service or within the first post-service year, or that it is otherwise related to service. For the foregoing reasons, the preponderance of the evidence is against the claim. The benefit-of-the-doubt doctrine is therefore not for application, and service connection for left ear hearing loss is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Elwood, 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.