Citation Nr: 21021652 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 18-52 271 DATE: April 13, 2021 ORDER Service connection for a dental disability for compensation purposes is denied. Service connection for a dental disability for treatment purposes only is denied. Prior to November 25, 2019, a noncompensable rating for the service connected hearing loss is denied. Beginning November 25, 2019, a 30 percent rating for the service-connected hearing loss is granted. REMANDED Entitlement to service connection for a liver disability, to include a liver disability that manifests with a symptom of jaundice, is remanded. FINDINGS OF FACT 1. The evidence does not show the Veteran experienced dental trauma or disease during service resulting in bone loss of the maxilla or mandible. 2. The Veteran does not meet the criteria for any of the legally specified classes of veterans for entitlement to VA dental treatment. 3. Prior to November 25, 2019, the Veteran’s bilateral hearing manifested by hearing acuity of no worse than Level I in the right ear and no worse than Level I in the left ear. 4. Beginning November 25, 2019, the Veteran’s bilateral hearing manifested by hearing acuity of Level VI in the right ear and Level VI in the left ear, but no worse. CONCLUSIONS OF LAW 1. The criteria for service connection for a dental disability for VA compensation purposes are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.102, 3.303, 4.150. 2. The criteria for service connection for a dental disability for VA treatment purposes are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.102, 3.303, 4.150, 17.161. 3. Prior to November 25, 2019, the criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 4. Beginning November 25, 2019, the criteria for a 30 percent rating, but no higher, for bilateral hearing loss have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1966 to February 1968. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from a November 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in July 2019. These claims were remanded for further development, which was substantially completed. Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to service connection for a dental disability is denied. The Veteran applied for service connection for a “dental condition.” Other than disagreeing with the denial of service connection, the Veteran does not set forth his contentions as to why he is entitled to service connection for a dental disability. Compensation Under VA regulations, compensation is available for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150. These conditions include loss of whole or part of the mandible, nonunion or malunion of the mandible, loss of whole or part of the ramus, loss of whole or part of the maxilla, nonunion or malunion of the maxilla, loss of the condyloid or coronoid process, or loss of any part of the hard palate. See 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. Compensation is also available for loss of teeth only if such is due to loss of substance of body of maxilla (upper jawbone) or mandible (lower jawbone). See Simmington v. West, 11 Vet. App. 41 (1998). For loss of the teeth, bone loss through in-service trauma or disease, such as osteomyelitis, must be shown for compensable purposes. The loss of the alveolar process because of periodontal disease is not considered disabling. See 38 C.F.R. § 4.150, Diagnostic Code 9913. In addition, to be compensable, the lost masticatory surface for any tooth cannot be restorable by suitable prosthesis. Id. Therefore, in order to establish service connection for VA compensation purposes, it is not enough to show that the teeth were lost due to trauma during active duty service. The evidence must demonstrate that the trauma resulted in loss of substance of the maxilla or mandible, which then resulted in the loss of the teeth. VA’s General Counsel has held that dental treatment of teeth, even therapeutic extractions, during service does not constitute dental trauma. See VAOPGCPREC 5-97, 62 Fed. Reg. 15,566 (1997). Treatable carious teeth, replaceable missing teeth, and dental or alveolar abscesses are not considered disabling conditions and are not subject to service connection for VA compensation purposes. See 38 C.F.R. § 3.381(b). A February 1966 dental examination showed that teeth # 19 and 30 were missing at entrance into service. Teeth # 14, 18, and 31 needed to be extracted, but the dentist was going to try to save tooth #18. At entrance, teeth # 2, 3, 5, 12, 14, 15, 17, 18, and 29 had caries. In July 1977, tooth 31 was extracted. Between August 1966 and January 1967, teeth # 2, 3, 5, 12, 14, 15, 17, 18, and 29 were all filled during service. In October 1966, the Veteran was provided with partial lower dentures. An undated dental service treatment record showed the Veteran was treated prophylactically with SnF2 paste topically with notes to repeat within 6 months. Teeth #19, 30, and 31 were missing. The January 1968 separation examination showed that the Veteran was missing teeth # 19, 30, and 31, the Veteran was acceptable for discharge. Post-discharge, in September 1968, the Veteran was provided a dental examination type #2. In early January 1969, tooth #14 was temporarily filling. Later in January 1969, tooth #14 was afforded a permanent filling with three pins. April to March 2010 private treatment records from Dr. L., a dentist, showed the Veteran was treated with an extraction and impressions were taken for lower partial dentures. An April 2011 post-service private dental treatment plan showed that Dr. G.G., a dentist, proposed extractions of teeth 4, 5, 6, 7, 8, 9, 10, 11,16, and 32. Complete maxillary dentures and mandible part-cast metal with resin were also proposed. December 2011 VA treatment records show the Veteran was treated by his primary care physician. The clinician noted the Veteran had a dental infection and he was to continue taking amoxicillin and Vicodin. An April 2012 VA treatment record included an oral screening. The Veteran was noted to have his own natural teeth without removable dentures. He denied oral pain or swelling. The Veteran was afforded a VA dental examination in January 2020. The examiner, a dentist, reviewed the Veteran’s claims file and examined the Veteran. The examiner currently diagnosed the Veteran periodontal disease. The Veteran reported that he started losing teeth during service in 1966-1967 to gum disease. The Veteran did not have a disability that manifested as anatomical loss of the mandible, anatomical loss of the maxilla, anatomical loss or bony injury leading to the loss of teeth, anatomical loss or injury to the lips or mouth, disfiguring scars to the mouth or lips, osteomyelitis/osteoradionecrosis/osteonecrosis of the jaw, tumors or neoplasms, or other pertinent physical findings, complications, conditions, signs, symptoms, or scars. January 2020 panagraphic/intraoral imaging showed the Veteran had missing teeth and periodontal disease. As an initial matter, the Veteran is precluded from entitlement to service connection for compensation purposes for periodontal disease. See 38 C.F.R. § 3.381(b). The Board finds that the preponderance of the competent and credible evidence of record is against a finding that the Veteran’s missing and decayed teeth resulted in bone loss of the maxilla or mandible due to dental trauma or disease such as osteomyelitis that was incurred during service. Again, treatable carious teeth, replaceable missing teeth, and therapeutic extractions are not considered disabling conditions for VA compensation purposes. See 38 C.F.R. § 3.381(b). During the appellate period, the evidence does not show that the Veteran has had any of the dental disabilities enumerated in 38 C.F.R. § 4.150. The Veteran’s service treatment records confirm that he received dental care; however, the service records and the VA examination are negative for dental trauma resulting in the loss of substance of the body of the maxilla or mandible causing loss of teeth, and the Veteran has not asserted otherwise. The Board has sympathetically considered the Veteran’s statements and assertions. However, as the Veteran has not been diagnosed with a dental disability for which service connection for VA compensation purposes may be granted. The appeal must be denied, and the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (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). Outpatient Treatment A claim for service connection for a dental disability is also considered to be a claim for VA outpatient dental treatment. Mays v. Brown, 5 Vet. App. 302 (1993). Adjudication of the Veteran’s claim for service connection must also include consideration of service connection for the purpose of establishing eligibility for outpatient dental treatment as provided in 38 C.F.R. § 17.161, and the issue on appeal has been recharacterized to include entitlement to VA outpatient treatment. In such cases, VA law provides that treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease will be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment in accordance with the applicable classification and provisions set forth in 38 C.F.R. § 17.161. See 38 C.F.R. § 3.381. Under 38 C.F.R. § 17.161, Class I eligibility consists of those veterans having a service-connected compensable dental disability or condition, who may be authorized any dental treatment indicated as reasonably necessary to maintain oral health and masticatory function. There is no time limitation for making application for treatment, and no restriction as to the number of repeat episodes of treatment. 38 C.F.R. § 17.161(a). However, as determined above, the Veteran does not have a compensable service-connected dental condition and, as such, does not qualify for Class I VA dental outpatient treatment eligibility. For a veteran discharged prior to October 1, 1981, to be eligible under the Class II criteria, those having a service-connected noncompensable dental condition or disability shown to have been in existence at time of discharge or release from active service may be authorized for any treatment indicated as reasonably necessary for the one-time correction of the service-connected noncompensable condition, but only if: (1) a veteran was discharged or released, under conditions other than dishonorable, from a period of active military, naval or air service (2) a veteran served of 180 days or more; (3) a veteran submitted an application for treatment within 1 year after such discharge or release; and (4) a dental examination is completed within 14 months after discharge or release, unless delayed through no fault of the veteran. 38 C.F.R. § 17.161(b)(2)(i). The Veteran’s dental service treatment records show that he was provided a complete post-service dental examination in September 1968 with treatment completed by January 1969, which was within 14 months from his February 1968 discharge from service; therefore, he is not entitled to Class II treatment as he has already undergone a one-time correction for any treatment that was necessary at discharge. Class II(a) may be provided for those having a service-connected noncompensable dental condition or disability adjudicated as resulting from combat wounds or service trauma, and includes any treatment indicated as reasonably necessary for the correction of such service-connected noncompensable condition or disability. 38 C.F.R. § 17.161(c). The Veteran does not have a service-connected dental condition, and as discussed above, the record neither includes evidence of in-service dental trauma nor does the Veteran assert otherwise. Therefore, the Veteran is not entitled to Class II(a) treatment. A veteran may also be entitled to VA outpatient dental treatment if he or she qualifies under one of the other categories outlined in 38 C.F.R. § 17.161. However, the evidence does not demonstrate that the Veteran in this case meets the criteria under any of the other classes. There is no evidence that he is homeless or was a prisoner of war; therefore, he does not qualify for dental treatment on a Class II(b) or Class II(c) basis. See 38 C.F.R. § 17.161(d), (e). He does not meet the criteria for Class IIR (retroactive) eligibility, as there is no evidence that he previously applied for and received VA dental treatment but was denied replacement of missing teeth, and the Veteran has not asserted otherwise. See 38 C.F.R. § 17.161(f). Moreover, the Veteran has not asserted, and the evidence does not show, that the Veteran has a dental condition that impairs or aggravates his service-connected disabilities such that treatment may be available under the Class III criteria. See 38 C.F.R. § 17.161(g). He is not currently in receipt of a total rating for service-connected disabilities. Additionally, he is not currently a Chapter 31 vocational rehabilitation trainee or receiving, or scheduled to receive, VA care and treatment for a condition determined to be complicating a medical condition currently under VA treatment. As such, the Veteran also does not meet the criteria for Class V, or VI eligibility for dental treatment. See 38 C.F.R. § 17.161(h), (i), (j). As such, entitlement to VA outpatient dental treatment is precluded by regulation. The claim must therefore be denied as a matter of law. See Sabonis v. Brown, 9 Vet. App. 426, 430 (1994). The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (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. Increased rating claim for the service connected bilateral hearing loss Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, 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. Further, when the average 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 results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). a) Prior to November 25, 2019, a noncompensable rating for the service connected bilateral hearing loss is denied. An August 2012 VA examination reports that the Veteran’s Maryland CNC Word List speech recognition scores and pure tone thresholds, in decibels, were as follows: August 8, 2012 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 45 45 50 44 100 percent LEFT 25 45 45 50 41 100 percent Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designations into 38 C.F.R. § 4.85, Table VII, equates to a noncompensable rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown during this examination. VA and private treatment records were reviewed, but there were no audiological evaluations in those records. Accordingly, prior to November 25, 2019, a preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for the bilateral hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (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). b) Beginning November 25, 2019, a 30 percent rating, but no higher, for the service-connected hearing loss is granted. November 25, 2019 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 55 75 70 80 70 94 percent LEFT 50 70 85 95 75 96 percent Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation into 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under Diagnostic Code 6100. However, an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was shown in both ears during the November 2019 VA examination. Applying the results to Table VIA yields Level VI in the right ear and level VI in the left ear. Entering the resulting bilateral numeric designation into 38 C.F.R. § 4.85, Table VII, equates to a 30 percent disability rating under Diagnostic Code 6100. Here, Table VIA yields the highest rating for the right ear and Table VIA yields the highest rating for the left ear. VA and private treatment records were reviewed, but there were no audiological evaluations in those records. Based on the above, beginning November 25, 2019, a 30 percent rating, but no higher, for the service connected bilateral hearing loss is warranted. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Board also contemplated assigning the 30 percent rating earlier than the date of the November 2019 examination; however, because disability ratings are derived from the mechanical application of the rating schedule, the day of the November 2019 examination is the first ascertainable date of worsening hearing loss. See December 2012 notice of disagreement. Beginning November 25, 2019, a 30 percent rating for the service connected bilateral hearing loss is granted. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (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). REASONS FOR REMAND 1. Entitlement to service connection for a liver disability, to include Hepatitis B with jaundice, is remanded. The Veteran contends that he had a liver disability that pre-existed entry into service, manifested as jaundice, which was aggravated by service. A November 2019 VA examiner rendered a diagnosis of Hepatitis B based on a July 2011 reactive Hepatitis B core antibody, despite the remainder of the panel being negative. An August 2020 VA examiner concluded that the Veteran did not have Hepatitis B during the appellate period because, although he did have Hepatitis B antibodies, the remaining Hepatitis B panel was negative. These laboratory findings show that he had a remote bout of Hepatitis B that he cleared, creating antibodies, but he did not currently meet the diagnostic criteria for a diagnosis of Hepatitis B. The August 2020 VA examiner also noted the Veteran had a currently diagnosed liver disability of hepatic steatosis and concluded it did not have onset during or was otherwise related to service as it only developed after many years of obesity. Furthermore, it also did not develop until many years after service. During the appellate period, April 2012 VA treatment records showed elevated liver enzymes with minimal abdominal pain on deep palpation of the right upper quadrant. May 2012 echocardiogram and ultrasound studies shows a slightly prominent liver with minimally heterogenous increased parenchymal echogenicity. A May 2012 VA treatment record also showed abnormal liver function testing. The Veteran’s Hepatitis panel was negative. January 2019, May 2019, and November 2019 liver function testing was abnormal. The most recent findings of jaundice were prior to the current appellate period in 2009. On remand, an addendum opinion should be obtained to determine if the liver symptoms and findings in the VA treatment records are attributable to Hepatitis B, the hepatic steatosis, or another liver disability. Additionally, based on the current evidence of record it appears the Veteran does not have a currently diagnosed Hepatitis B disability during the appellate period; however, if the liver symptoms and findings in the VA treatment records are manifestations of Hepatitis B, an addendum opinion will be necessary to determine the nature of the Hepatitis B to determine whether he has a current Hepatitis B disability during the appellate period. As noted in the July 2019 Board remand, the Veteran contends that he contracted Hepatitis B before he entered service. The Board requested a medical opinion as to whether the evidence was clear and unmistakable that the Hepatitis B pre-existed service and was not aggravated by service. The August 2020 VA examiner used the clear and unmistakable evidentiary standard when offering an opinion as to whether the Hepatitis B preexisted service but did not use the clear and unmistakable standard when offering an opinion as to whether it was not aggravated during service. On remand, an addendum opinion should be obtained. The matters are REMANDED for the following action: 1. Obtain any outstanding pertinent VA treatment records and associate them with the claims file. 2. Obtain an addendum opinion as to the nature of the liver disability from an appropriate clinician. The Veteran’s contentions should be addressed. After a thorough review of the claims file, the examiner should address the following: a) Provide an opinion as to whether the liver symptoms and findings in the VA treatment records during the appellate period are attributable to Hepatitis B, hepatic steatosis, or another liver disability. b) If the medical findings and symptoms related to the liver in the VA treatment records are manifestations of Hepatitis B, obtain an addendum opinion as to whether the evidence is (1) clear and unmistakable that the Hepatitis B pre-existed service; and if so, whether there was (2) clear and unmistakable evidence that the Hepatitis B was not aggravated during service. c) If (1) the medical findings related to the liver in the treatment records are manifestations of Hepatitis B and (2)(a) the examiner concludes that the Hepatitis B did not preexist service and (2)(b) was not aggravated during service by clear and unmistakable evidence, then provide an opinion as to whether the currently diagnosed Hepatitis B had onset during or was otherwise related to service, to include several service treatment records showing the Veteran sought treatment for dizziness during service. See February 1966 service treatment records. 3. Readjudicate the claim on appeal. Romina A. Casadei Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Harper, 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.