Citation Nr: 21011672 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 12-20 627 DATE: March 2, 2021 ORDER Entitlement to an initial compensable rating for bilateral sensorineural hearing loss is denied. Entitlement to service connection for loss of teeth for VA compensation purposes is denied. FINDINGS OF FACT 1. The Veteran demonstrated, at worst, Level I hearing acuity in his right ear and Level I hearing acuity in his left ear throughout the appeal period. 2. The Veteran’s dental disability is not due to loss of substance of the body of the maxilla or mandible during service due to in-service trauma or disease such as osteomyelitis, and not to the loss of the alveolar process as a result of periodontal disease. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.85, Diagnostic Code 6100. 2. The criteria for service connection for a dental disability for VA compensation purposes are not met. 38 U.S.C. §§ 1110, 1712, 5107; 38 C.F.R. §§ 3.303, 3.381, 4.150, 17.161. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1971 to January 1975. These matters initially came before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO granted service connection for left ear hearing loss at a noncompensable evaluation effective January 6, 2010, denied service connection for right ear hearing loss and tinnitus, and denied compensation for loss of teeth due to extractions. The Veteran initially requested a Board hearing in his July 2012 appeal. The Veteran withdrew his request in an August 2014 statement and in an October 2016 telephone correspondence following a September 2016 notification of a scheduled hearing. The Board remanded all issues on appeal in December 2016. In July 2017, the RO granted service connection for tinnitus. In December 2017, the Board granted service connection for right ear hearing loss. In the same decision, the Board remanded service connection for left ear hearing loss to be adjudicated with right ear hearing loss by the RO in the first instance, and remanded service connection for a dental disorder for clarification as to whether the Veteran’s loss of teeth was due to loss of substance of the body of the maxilla or mandible during service due to in-service trauma or disease such as osteomyelitis, and not to the loss of the alveolar process as a result of periodontal disease. The Board also requested treatment records and readjudication of the issues on appeal, and referred the issue of establishing eligibility for outpatient dental treatment as provided in 38 C.F.R. § 17.161. In accordance with the Board’s remand instructions, the RO sought treatment records in January 2018, evaluated the Veteran’s right ear and left ear hearing loss together in a May 2020 rating decision, and obtained a medical opinion for the Veteran’s dental condition in December 2020. Regarding the Veteran’s hearing loss, the issue has been recharacterized on appeal as bilateral hearing loss because both left and right ear hearing loss are service connected and evaluated together, as reflected in the most recent Supplemental Statement of the Case in December 2020. Regarding the Board’s referral for dental treatment, the claims file contains a December 2020 deferred rating decision which included that the Veteran should be sent a development letter. However, that rating memorandum is for “internal use only” and it is not clear as to whether the issue was referred to VHA or if the Veteran was informed how to initiate a determination regarding his eligibility to dental treatment services. A claim for service connection for a dental disability is also considered a claim for VA outpatient dental treatment. Mays v. Brown, 5 Vet. App. 302, 306 (1993). Review of the file reveals that the agency of original jurisdiction (AOJ), i.e., Veterans Benefits Administration, has only adjudicated the issue of entitlement to service connection for a dental disorder for VA compensation purposes. In December 2016 and December 2017, the Board referred the issue to the RO to refer a claim for outpatient dental treatment to the Veterans Health Administration (VHA) for appropriate action. The VHA has yet to adjudicate the claim for VA outpatient dental treatment. The VA outpatient dental treatment claim is herein referred again, to include informing the Veteran and his representative that a claim for benefits must be submitted on the application form prescribed by the Secretary of VA and providing such forms. See 38 C.F.R. § 3.150(a) (providing for furnishing of appropriate application form upon request for VA benefits); 38 C.F.R. § 3.155 (describing the manner and methods in which a claim can be initiated and filed); 3.1(p), 3.160 (defining various types of claims). 1. Evaluation of Hearing Loss Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The assigned rating for hearing loss is determined by mechanically applying the rating criteria to audiometric test results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Under Diagnostic Code 6100, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examination. Evaluations of hearing impairment range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (using the Maryland CNC Speech Discrimination Test), together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz (cycles per second). To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. As set forth in the regulations, Tables VI, VIA, and VII are used to calculate the rating to be assigned. See 38 C.F.R. § 4.85, Diagnostic Code 6100. Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. Alternatively, VA regulations provide that in cases of exceptional hearing loss, when the pure tone thresholds at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) further provide that, when the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever would result in the higher numeral. As shown below, there were no exceptional hearing patterns in this case. On a May 2010 VA audiological examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 35 30 40 45 38 LEFT 20 25 30 35 28 Maryland CNC speech recognition scores were 98 percent in the right ear and 96 percent in the left ear. With application of the above test results to 38 C.F.R. § 4.85, Table VI, Table VIA, and Table VII, the Veteran’s right ear hearing loss, at its worst, is assigned a numeric designation of I, and the left ear hearing loss, at its worst, is assigned a numeric designation of I. As noted above, the assigned evaluation for hearing loss is determined by mechanically applying the rating criteria to certified results. See Lendenmann, 3 Vet. App. at 349. Combining Level I hearing in both ears according to Table VII yields a noncompensable rating. Therefore, the claim for a higher evaluation for his service-connected bilateral hearing loss is denied under Table VII. See 38 C.F.R. § 4.85, Diagnostic Code 6100. On a March 2017 VA audiological examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 25 35 55 35 LEFT 25 30 40 45 35 Maryland CNC speech recognition scores were 100 percent in the right ear and 100 percent in the left ear. With application of the above test results to 38 C.F.R. § 4.85, Table VI, Table VIA, and Table VII, the Veteran’s right ear hearing loss, at its worst, is assigned a numeric designation of I, and the left ear hearing loss, at its worst, is assigned a numeric designation of I. As noted above, the assigned evaluation for hearing loss is determined by mechanically applying the rating criteria to certified results. See Lendenmann, 3 Vet. App. at 349. Combining Level I hearing in both ears according to Table VII yields a noncompensable rating. Therefore, the claim for a higher evaluation for his service-connected bilateral hearing loss is denied under Table VII. See 38 C.F.R. § 4.85, Diagnostic Code 6100. The March 2017 VA audiological examination report also described the effects of the Veteran’s hearing impairments on his daily life, consistent with the requirements of Martinak v. Nicholson, 21 Vet. App. 447 (2007). The examiner documented the impact of the Veteran’s hearing loss reported as other people saying that the Veteran occasionally did not hear properly. These symptoms reported are contemplated by the criteria, and consideration of remand for referral an extraschedular rating is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008), aff’d sub nom Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009) (the first question in the extraschedular analysis is whether the rating criteria adequately contemplate the disability picture); Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (difficulty in distinguishing sounds in a crowded environment, locating the source of sounds, understanding conversational speech, hearing the television, and using the telephone are each a manifestation of difficulty hearing or understanding speech, which is contemplated by the schedular rating criteria for hearing loss). For the foregoing reasons, the preponderance of the evidence is against the claim for an initial compensable rating for bilateral hearing loss. The benefit of the doubt doctrine is therefore not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette, 28 Vet. App. at 369-70 (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 2. Service connection for Loss of Teeth Service connection for compensation purposes can only be established for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla. Compensation is available for loss of teeth only if due to loss of substance of the body of the maxilla or mandible. 38 C.F.R. § 4.150, Diagnostic Code 9913; see Simmington v. West, 11 Vet. App. 41 (1998). For loss of teeth, bone loss through trauma or disease such as to osteomyelitis must be shown for compensation purposes. The loss of the alveolar process as a result of periodontal disease is not considered disabling. 38 C.F.R. § 4.150, Diagnostic Code 9913, Note. VA regulations provide that certain common dental conditions, including periodontal disease, can be service connected only to establish eligibility for outpatient dental care, not to receive disability compensation. 38 C.F.R. § 3.381(a). The applicable regulations are clear that bone loss through trauma or disease must be established to show a disability for VA compensation purposes. 38 C.F.R. § 4.150, Diagnostic Code 9913, Note. In the December 2020 VA opinion, a VA dentist diagnosed the Veteran with missing non-restorable teeth, noting oral conditions of mandible, maxilla, teeth, and “osteomyelitis/osteoradionecrosis/osteonecrosis” of the jaw. Significantly, however, in the “osteomyelitis/osteoradionecrosis/osteonecrosis of the jaw” portion of the examination report, the December 2020 VA dentist wrote the Veteran had never been diagnosed with osteomyelitis or osteoradionecrosis of the mandible or osteonecrosis of the jaw. After reviewing the file including December 2020 panographic intraoral imaging, the Dec 2020 VA dentist remarked that the Veteran is void of temporomandibular joint dysfunction (TMJ), osteomyelitis, or osteoradionecrosis, and that tooth loss that occurred while in service was due to restorability of teeth involved and the diagnosis that the teeth were beyond repair, not due to trauma or substance loss of the maxilla and mandible. The Veteran’s TMJ and jaw range of motion was normal. Thus, reading the examination report as a whole and in the context of the evidence of record, it reflects that the Veteran did not have bone loss through trauma or disease such as osteomyelitis. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). As the VA examiner explained the reasons for his conclusions based on an accurate characterization of the evidence of record, his opinion is entitled to substantial probative wight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The Veteran submitted several collections of private treatment records, including letters from his personal physicians. See, e.g., S.J.L. letters from January 2020, April 2011, January 2007; November 2012 S.M.K. letter. Dr. S.M.K wrote that, after reviewing the Veteran’s service dental records, “I suspect that the extractions caused the loss of the buccal plate of bone.” These reports and letters do not suggest bone loss caused loss of teeth as defined in 38 C.F.R. § 4.150, Diagnostic Code 9913, Note. Rather, at most they suggest that the loss of teeth caused loss of bone, but in any event, the “suspect” terminology used renders the opinion non-probative. Hood v. Shinseki, 23 Vet. App. 295, 298–99 (2009) (medical opinion is speculative when it uses equivocal language such as “could” or “might,” without any other rationale or supporting data); Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (doctor’s statement that veteran’s brain tumor “may well be” connected to Agent Orange exposure was speculative); Bloom v. West, 12 Vet. App. 185, 187 (1999) (use of term “could,” without other rationale or supporting data, is speculative); Winsett v. West, 11 Vet. App. 420, 424 (1998) (terminology equivalent to ‘may or may not‘ is an insufficient basis for an award of service connection); Goss v. Brown, 9 Vet. App. 109, 114 (1996) (use of the phrase “could not rule out” was too speculative to establish medical linkage). The more definitive VA opinion indicating a lack of disability for which compensation can be granted is therefore of greater probative weight. For the above reasons, the claimed dental disability does not relate to a disability for which compensation may be warranted within the meaning of the applicable regulations. As the preponderance of the evidence weighs against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 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. Kuczynski, 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.