Citation Nr: 21011271 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 20-25 032A DATE: March 1, 2021 ORDER Entitlement to service connection for major depressive disorder is denied. Entitlement to service connection for obstructive sleep apnea is denied. Entitlement to service connection for a dental condition is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. The Veteran’s current major depressive disorder was not incurred in, and is not otherwise related to, his active service. 2. The Veteran’s current obstructive sleep apnea was not incurred in, and is not otherwise related to, his active service. 3. The Veteran does not have a dental disorder for which compensation is payable. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for major depressive disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for a dental condition. have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.381, 4.150, 17.161. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from July 1960 to July 1963. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the “nexus” requirement. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303 (d). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits.  38 U.S.C. § 1154 (a).  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159 (a)(2).  This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot).  A layperson is generally incapable of opining on matters requiring medical knowledge and, specifically is not competent to provide an opinion as to etiology in such cases.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The claimant bears the burden of presenting and supporting a claim for benefits.  38 U.S.C. § 5107 (a); Fagan v. Shinseki, 573 F.3d 1282, 128688 (Fed. Cir. 2009).  In making determinations, VA is responsible for ascertaining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). 1. Entitlement to service connection for depression is denied. The Veteran seeks service connection for depression. He contends that he became depressed because it was indicated during service that he would be expected to take a life if necessary, which went against his belief system as a “[border]line conscientious objector.” The Board finds service connection is not warranted. Initially, the Board notes that the Veteran sought an initial mental health consultation in December 2017, at which point he was diagnosed with major depressive disorder. Thus, the question is whether the Veteran’s current depressive disorder is related to his active duty service. The Board finds that it is not. The Veteran’s service treatment records do not document any complaints or treatment for depression. On the Report of Medical History completed by the Veteran at his March 1963 separation examination, the Veteran denied any symptoms that would indicate a possible mental health problem. VA treatment records show that the Veteran answered “no” or “not at all” to all depression and posttraumatic stress disorder screening questions from August 2000 to November 2015. While records also note he sought a mental health consult in 2012 for anxiety, the subsequent mental health consultation notes that this anxiety stemmed from certain physical capabilities, not his military service. The Veteran filed for service connection for depression in May 2016. A September 2016 rating decision denied the claim. In October 2016, the Veteran submitted a notice of disagreement, alleging that his depression stemmed from his beliefs as a borderline conscientious objector. In June 2017 it was noted that the Veteran experienced some depression and was prescribed a medication. In December 2017, the Veteran underwent an initial mental health consultation after referral from a VA social worker. The Veteran reported that while he was enlisted, his father passed away unexpectedly and that the loss “broke” him. At the consultation, the Veteran was formally diagnosed with major depressive disorder. VA treatment records reveal that since this time, the Veteran has been treated for depressive symptoms. However, this consultation and his subsequent treatment records do not reveal any indication that the symptoms or diagnosis is related to his military service. To the extent that the Veteran has reported a continuity of depressive symptomatology since service, the evidence of record simply does not support such a finding or theory of entitlement, and the Board finds the Veteran less than credible in this regard. For example, the Veteran denied any depressive symptoms at separation. Moreover, the Veteran denied any depressive symptoms from 2000 to 2015. Consistent notes of depression and treatment for depressive symptoms do not appear on the record until after the Veteran filed for service connection in March 2016. Harvey v. Brown, 6 Vet. App. 390, 393–94 (1994) (drawing a credibility distinction between statements made for the purpose of receiving treatment and those made for the purpose of seeking compensation). The Veteran is not competent to provide a nexus between his current depression and his active military service because he does not have the requisite medical training or expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). He was a medical specialist while in the Army, but his college degree is in theology. The Veteran is competent to describe his emotional response to events that may have occurred in service. However, to the extent that it was reported during the December 2017 evaluation that his father’s death during his military service affected him emotionally, the record reveals that his father passed away at age 85 in 1967, approximately four years after the Veteran separated from service. Thus, the Board did not consider this contention regarding whether service connection is warranted for the Veteran’s major depressive disorder. The Veteran has not been afforded a VA examination to assist him in substantiating the claim. While the Board has found there is a current disability, there is no evidence indicating that a nexus between that disability and active military service may exist. Something more than the Veteran’s own self-serving statements is required to trigger VA’s duty to assist. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010). In sum, the evidence indicates that the Veteran has received recent treatment for major depressive disorder, but there is no nexus between this disability and his active military service. Accordingly, service connection for depression is not warranted. 2. Entitlement to service connection for obstructive sleep apnea is denied. The Veteran seeks entitlement to service connection for a sleep disorder. The Board finds service connection is not warranted. In September 2017, the Veteran underwent an initial sleep disorder consultation, which recommended he perform an at home sleep study. Later in September 2017, the Veteran conducted the at home sleep study, which was interpreted in October 2017 as revealing that the Veteran suffers from obstructive sleep apnea. The question is whether the Veteran’s current obstructive sleep apnea is related to his military service. The Board finds that it is not. The Veteran’s service treatment records do not document any complaints or treatment for sleeping problems. On the Report of Medical History completed by the Veteran at his March 1963 separation examination, the Veteran denied trouble sleeping. Although it does note throat trouble, this was explained as consisting of the occasional sore throat. Neither the lay nor medical evidence indicates that the current disability may be related to service. For example, the Veteran contended in his VA Form 9 that he has had sleeping problems since the late 1960s, which would have been after his separation from service. At his sleep consultation, the Veteran reported possible sleep apnea symptoms consisting of daytime sleepiness occurring in the 1980s. The Veteran’s daughter also submitted a letter detailing possible sleep apnea symptoms but indicated that her reported observations were made in the 1980s. Moreover, at the Veteran’s sleep consultation and during subsequent treatment for obstructive sleep apnea, no medical professional has linked the Veteran’s current sleep disorder to his military service. As the evidence does not support the possibility of such a relation, VA does not have a duty to assist the Veteran in substantiating his claim by providing an examination. 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010). Accordingly, there is no reasonable basis to find that the Veteran’s obstructive sleep apnea was incurred in or is otherwise related to his active service. The Veteran has not raised any additional theories of entitlement to service connection and such theories have not been raised by the evidence of record. There is no doubt to be resolved; service connection for obstructive sleep apnea is not warranted. 3. Entitlement to service connection for a dental condition is denied. The Veteran contends he has a dental condition due to a nerve being cut during an in-service wisdom tooth extraction. The dental conditions for which service-connected compensation benefits are available are set under 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. Disability compensation and VA outpatient dental treatment may be provided only 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. Dental disabilities that may be awarded compensable disability ratings are set forth under 38 C.F.R. § 4.150. These disabilities include chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss of the mandible, nonunion or malunion of the mandible, loss of the maxilla, nonunion or malunion of the maxilla, 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. The Board notes that the portion of VA’s Schedule for Rating Disabilities addressing dental and oral conditions was revised effective September 10, 2017. The Veteran has not been notified as to the changes in the regulations and the RO has not adjudicated his claims under the new regulations; however, as the new regulations involve benign or malignant neoplasms that are not applicable to the Veteran’s current claim and the other changes involved only clarification of the rating terms, the Board finds that there is no prejudice in adjudicating the Veteran’s dental claim for service connection. Under 38 C.F.R. § 3.381, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are to be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment as provided in 38 C.F.R. § 17.161. The matter of eligibility for VA dental treatment is not the subject of the Board’s review. Rather, the Board will address whether the Veteran is entitled to service connection for VA compensation purposes. The RO previously acknowledged the request for dental treatment and provided the Veteran with instructions on how to initiate a determination regarding his eligibility to dental treatment services, and also forwarded his application to the appropriate VA medical center. The service treatment records do not note any injuries to the mouth or teeth, but for one instance where he fell and hit his chin, which was characterized as a soft tissue injury. In November 1961 the Veteran underwent extraction of tooth number 17. In October 1962, the Veteran underwent extraction of teeth numbers 1, 16, and 32. The separation examination in March 1963 noted normal mouth and throat examination, except for the note of occasional sore throats. Treatment records associated with the claims file do not demonstrate any dental disability. Considering the pertinent evidence in light of the above, the Board finds that the Veteran does not have a compensable dental disorder. As noted above, replaceable missing teeth and periodontal gum disease may be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment. See 38 C.F.R. § 3.381. In this case, there is no competent medical or dental evidence of loss of teeth due to loss of substance of the body of the maxilla or mandible due to bone loss through trauma or any other condition on which service connection for compensation purposes could be allowed. The Veteran has alleged that the right side of his jaw sags, and that he would provide dental images showing this, but these images have not been submitted. The records do not indicate that during service the Veteran incurred an injury to the mandible or maxilla and the Veteran does not contend otherwise. There is evidence of removal of teeth in service; however, there is no evidence that the loss or removal of the teeth was the result of the loss of mandible or maxilla. Thus, none of the other DCs, 9900 through 9916, apply in this case. Again, DCs 9917 and 9918 are not applicable because they involve neoplasms, which are not present in this case. While service connection may be established for treatment purposes for replaceable missing teeth and periodontal disease, the regulations listed above clearly prohibit service connection for purposes of compensation where the disability involves replaceable missing teeth or periodontal disease. As neither condition is recognized by the applicable regulations as a disability for which VA compensation may be granted, the Veteran’s claim is not warranted. See 38 C.F.R. § 3.381 (periodontal disease is not a disability for compensation purposes). In addition, there was no evidence of any in-service dental trauma which resulted in residuals, additional loss of teeth, malunion or nonunion of the maxilla, or loss of body of the maxilla or mandible. See generally, VAOPGCPREC 5-97; 38 C.F.R. § 4.150, DCs 9913-9916. Consequently, there is no basis for entitlement to service connection for the Veteran’s claimed dental condition for compensation purposes. In reaching the conclusions above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b) (2012); see generally, Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for tinnitus is remanded. The Veteran seeks service connection for bilateral hearing loss and tinnitus due to in-service noise exposure. The Board finds that an addendum opinion is necessary before deciding this claim. The Veteran asserts that his in-service noise exposure stems from his attachment to an artillery unit and proximity to artillery fire without hearing protection. On his May 2020 VA Form 9, he indicated that when he was attached to the artillery unit, he had to go to the field each day where he was exposed to large weapons being discharged. The Veteran’s military personnel records reflect that he was assigned to an artillery unit – the Headquarter Battery 2nd Howitzer battalion, 36th Artillery (Hq, Btry 2nd HowBn, 36th Arty) between December 1960 and June 1961. Personnel records show a principal duty assignment of ambulance driver during this period. Although the Veteran’s military occupational specialty (MOS) was that of a medical specialist, which the RO noted carries a low probability of hazardous noise exposure, there appears to be a credible assertion of in-service exposure to hazardous noise in this case. The Veteran was provided a VA hearing loss examination in October 2020. At the examination, the Veteran was diagnosed with bilateral hearing loss for VA compensation purposes under 38 C.F.R. § 3.385. Tinnitus was also diagnosed. Although noting that the Veteran was attached an artillery unit during service in the evidence section, the examiner based his unfavorable nexus opinion upon a finding that as a medical logistics specialist the Veteran had, a low probability of hazardous noise exposure and that the onset of his hearing loss and tinnitus was long after separation. As part of the factual predicate for the unfavorable opinions appear to be inconsistent with the credible assertion of in-service noise exposure, an addendum opinion addressing the etiology of the Veteran’s bilateral hearing loss and tinnitus, taking into consideration his in-service hazardous noise exposure without hearing protection, is necessary. The matters are REMANDED for the following action: Obtain an addendum opinion regarding the etiology of the Veteran’s bilateral hearing loss and tinnitus. The examiner is asked to opine on whether it is at least as likely as not that the Veteran’s current bilateral hearing loss and tinnitus are etiologically or otherwise related to the Veteran’s military service, to include consideration of his reported in-service hazardous noise exposure from his time attached to an artillery unit, where he was exposed to artillery fire. The examiner is advised that in his May 2020 VA Form 9, the Veteran asserted that when he was attached to the artillery unit, he had to go to the field each day where he was exposed to large weapons being discharged. The Veteran’s military personnel records reflect that he was assigned to an artillery unit (Hq, Btry 2nd HowBn, 36th Arty) between December 1960 and June 1961 with a principal duty assignment of ambulance driver. A rationale must be included. A complete rationale is one that contains clear conclusions with supporting data and a reasoned explanation connecting the two. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.A. Infante, 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.