Citation Nr: 21012958 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 13-24 096 DATE: March 8, 2021 ORDER Service connection for pharyngitis is granted. Service connection for a jaw disability is denied. FINDINGS OF FACT 1. The record shows that the Veteran’s pharyngitis was caused by his service-connected rhinitis, sinusitis, and asthma with obstructive sleep apnea. 2. The record does not show that the Veteran have a jaw disability for which compensation is payable. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for pharyngitis have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2020). 2. The criteria for establishing entitlement to service connection for a jaw disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.381(b), 4.150 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1981 and May 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2015, the Veteran testified at a hearing before an Acting Veterans Law Judge who is no longer with the Board. The Veteran subsequently testified at a hearing before the undersigned Veterans Law Judge in September 2019. Transcripts of both hearings are of record. This matter was previously before the Board in September 2016 and November 2019 and was remanded for further development. The requested development was completed, and the case has been returned to the Board for further appellate action. The Board notes that the Veteran has perfected appeals of various other issues. However, the record shows that he is awaiting a hearing on those claims. As such, they will be the subject of a later Board decision, if ultimately necessary. The Board also notes that the Veteran has described his claim for service connection for a jaw disability as including tooth loss. In September 2016, the Board denied the Veteran’s service connection claim for gingivitis, as periodontal disease is not a compensable disability. However, a claim for service connection for a compensable dental disability is also considered to be a claim for VA outpatient dental treatment. See Mays v. Brown, 5 Vet. App. 302, 306 (1993). As it does not appear that a claim for VA outpatient dental treatment has been adjudicated by the agency of original jurisdiction (AOJ), the issue of entitlement to service connection for tooth loss for purposes obtaining VA outpatient dental treatment is REFERRED to the AOJ for appropriate action.   Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection may also be established for a disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). A disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). 1. Entitlement to service connection for a throat disability The Veteran asserts that a current throat disability began during service, or alternatively, was caused or aggravated by his service-connected sinus and respiratory disabilities. During the September 2019 Board hearing, the Veteran testified that he experienced postnasal drip, which caused his throat to feel dry and irritated. Upon review of the record, the Board finds that it is at least as likely as not that the Veteran’s pharyngitis was caused by his service-connected rhinitis, sinusitis, and asthma with obstructive sleep apnea. Private treatment records show reports of sore throat, hoarseness, and difficulty swallowing, and the Veteran has been diagnosed with chronic pharyngitis, or sore throat. See Error! Hyperlink reference not valid.. In June 2018, the Veteran’s private otolaryngologist indicated that the Veteran’s throat conditions included sleep apnea and uvular hypertrophy. He also indicated that the Veteran had postnasal drip with throat irritation and that his current throat conditions were related to his rhinitis and/or asthma. In a February 2020 written statement, the Veteran’s private otolaryngologist indicated that the Veteran’s throat conditions were obstructive sleep apnea and chronic pharyngitis, and he clarified that the Veteran’s uvular hypertrophy was actually a cause of his already service-connected sleep apnea. The Veteran underwent a VA examination in November 2020, during which he reported symptoms of dry mouth and sore throat. A physical examination revealed normal mucosa. The diagnoses were sinusitis and rhinitis. The examiner indicated that the Veteran’s sore throat and dry mouth were symptoms of his service-connected rhinitis, sinusitis, and asthma with obstructive sleep apnea, and there was no objective evidence of a separate throat disability. In support of this, the examiner explained that according to the Veteran’s history and known medical literature, treatment with antihistamines, nebulizer, albuterol, and continuous positive airway pressure (CPAP) can all cause dry throat symptoms. Although the VA examiner indicated that the Veteran’s throat symptoms were not a distinct disability, the Veteran’s private otolaryngologist provided a diagnosis of pharyngitis. Regardless of whether the Veteran is entitled to a separate rating for his symptoms of pharyngitis, it does not preclude him from being service connected for disabilities with overlapping symptoms. See Fenderson v. Vest, 12 Vet. App. 119, 125 (1999) (explaining that VA first determines whether the Veteran is entitled to service connection and then selects the appropriate diagnostic code to rate the service-connected disabilities); Esteban v. Brown, 6 Vet. App. 529 (1994) (separate ratings are permissible where none of the symptomatology for one condition is duplicative of or overlapping with the symptomatology of another condition). Accordingly, service connection for pharyngitis is granted. 2. Entitlement to service connection for a jaw disability The Veteran asserts that a current jaw disability began during service, or alternatively, was caused or aggravated by his service-connected sinus and respiratory disabilities. During the September 2019 Board hearing, the Veteran testified that he experienced lower jaw pain and tooth loss. 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. These disabilities include chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss of the mandible, nonunion or malunion of the mandible, 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, Diagnostic Codes 9900-9916. Compensation is available for loss of teeth only if such is due to bone loss caused by trauma or disease, such as osteomyelitis, but not the loss of the alveolar process as a result of periodontal disease. 38 C.F.R. § 4.150, Note to Diagnostic Code 9913. Replaceable missing teeth are not compensable disabilities. 38 C.F.R. § 3.381(b). Upon review of the record, the Board finds that the preponderance of the evidence is against a finding that the Veteran has a jaw disability for which compensation is payable. A June 2018 questionnaire completed by the Veteran’s private otolaryngologist shows that he wrote “N/A” when asked to identify diagnoses pertaining to the jaw. The Veteran underwent a VA examination in December 2020, during which he reported losing his teeth over the years, which he attributed to clenching and grinding his teeth due to his in-service duties working on a ship. The examiner indicated that the Veteran had tooth loss, but the masticatory surfaces could be restored by suitable prosthesis, and the Veteran’s tooth loss was not due to loss of body of the maxilla or mandible or due to trauma or disease such as osteomyelitis. There was no evidence of temporomandibular joint disorder; limitation of motion of the temporomandibular joint; loss of any portion of the mandible or maxilla; malunion or nonunion of the mandible or maxilla; oral neoplasm; loss of the ramus; loss of the condyloid or coronoid processes; loss of the hard palate; or osteomyelitis, osteoradionecrosis, or osteonecrosis of the jaw.   VA and private treatment records likewise do not show a diagnosis of any of the conditions listed in 38 C.F.R. § 4.150. Based on the foregoing, the Board finds that the evidence of record does not show that the Veteran has a jaw disability for which compensation is payable. See 38 C.F.R. §§ 3.381(b), 4.150. Accordingly, service connection for a jaw disability is denied. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Banister, 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.