Citation Nr: 21026077 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 17-56 588 DATE: April 29, 2021 ORDER Entitlement to service connection for tinnitus is dismissed. Entitlement to service connection for sinusitis is dismissed. Entitlement to service connection for headaches is dismissed. Entitlement to service connection for acid reflux is dismissed. Entitlement to service connection for esophagitis is dismissed. Entitlement to service connection for thyroid is dismissed. Entitlement to service connection for abdominal hernia is dismissed. Entitlement to service connection for lumbar spine degenerative disc disease (DDD) is granted. Entitlement to service connection for sciatica of the bilateral lower extremities, to include as secondary to lumbar spine DDD, is granted. Entitlement to service connection for left hip osteoarthritis is granted. Entitlement to service connection for bilateral knee osteoarthritis is granted. Entitlement to service connection for dental disability for compensation purposes is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder to include depression, anxiety, and insomnia, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for dental disability for treatment purposes is remanded. FINDINGS OF FACT 1. At her February 2020 Board hearing and prior to the promulgation of a decision, the Veteran and her attorney verbally withdrew the claim for entitlement to a service connection for tinnitus, sinusitis, headaches, acid reflux, esophagitis, thyroid, and abdominal hernia. 2. Resolving reasonable doubt in the Veteran’s favor, the Board finds the Veteran’s lumbar spine DDD is related to service. 3. The Board finds the Veteran’s sciatica of the bilateral lower extremities is secondary to her service-connected lumbar spine DDD. 4. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s left hip osteoarthritis is related to service. 5. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s bilateral knee osteoarthritis is related to service. 6. The Veteran does not have a current dental disability for VA compensation purposes. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim for entitlement to a service connection for tinnitus, sinusitis, joint pain, headaches, acid reflux, esophagitis, thyroid, and abdominal hernia have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 2. The criteria for service connection for lumbar spine DDD have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for sciatica of the bilateral lower extremities, to include as secondary to lumbar spine DDD, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for left hip osteoarthritis have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for service connection for bilateral knee osteoarthritis have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 6. The criteria for establishing service connection for dental disability for VA compensation purposes have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 4.150. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1976 to August 1996. In February 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. The Board notes that the Veteran filed separate service connection claims for depression, anxiety, and insomnia. In that regard, the Board has recharacterized the issues on appeal as a claim for entitlement to service connection for an acquired psychiatric disability, to include depression, anxiety, and insomnia. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In September 2015, VA informed the Veteran that her service treatment records (STRs) were unavailable for review. The Board notes that the duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Additionally, when STRs are unavailable at no fault of the Veteran, VA has a heightened duty to assist the claimant in developing the claim, as well as to consider the applicability of the benefit of the doubt rule and to explain its decision. Cromer v. Nicholson, 19 Vet. App. 215 (2005), citing Russo v. Brown, 9 Vet. App. 46 (1996); see also Cuevas v. Principi, 3 Vet. App. 542 (1992); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Dismissal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In her January 2020 Hearing Statement and Evidence Submission and during her Board hearing, the Veteran withdrew her appeal for entitlement to a service connection for tinnitus, sinusitis, headaches, acid reflux, esophagitis, thyroid, and abdominal hernia. The Board finds that the Veteran has withdrawn the appeal as to those claims. Therefore, there remain no allegations of errors of fact or law for appellate consideration on these matters. Accordingly, the Board does not have jurisdiction to review these issues, and the identified issues on appeal are dismissed. 1. Entitlement to service connection for lumbar spine, sciatica of the bilateral lower extremities, and left hip and knee disabilities Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection on a direct basis, the record must contain: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternately, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. Certain chronic diseases, to include arthritis, although not shown in service, may be presumed to have incurred in or aggravated by service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). To substantiate secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis The Veteran contends that her lumbar spine, left hip, and bilateral knee disabilities are due to military service. She also contends that her sciatica of the bilateral lower extremities is secondary to her lumbar spine DDD. The Veteran has been diagnosed with lumbar spine DDD, sciatica of the bilateral lower extremities, and left hip and bilateral knee osteoarthritis. As such, element one under Shedden is met. The Board again notes that the Veteran’s STRs are unavailable. However, as discussed below, when considering the circumstances of the Veteran’s service and her credible statements, the Board finds that the Veteran’s injury began in service. In her June 2016 Notice of Disagreement, the Veteran stated that during service and on numerous occasions, she was treated for lower back and joint pain. In February 2020, the Veteran submitted an opinion from her treating physician. The examiner diagnosed the Veteran with lumbar spine DDD, sciatica of the bilateral lower extremities, and left hip and bilateral knee arthritis. The examiner opined that the Veteran’s lumbar spine and left hip and bilateral knee disabilities are at least as likely as not due to her military service. The examiner stated that the Veteran served in the U.S. Army for 20 years. During service, she worked primarily as a personnel specialist but was required to remain fit for duty. She was required to perform daily physical training, bi-annual physical testing, and field training. She hiked, walked, and ran in full combat gear. The gear often weighed up to fifty pounds. She trained on different surfaces, to include asphalt, concrete, and uneven surfaces such as rough terrain, gravel, and woods. She also trained in all weather conditions, to include extreme heat and cold, rain, ice, and snow. As a part of her field training, she trained in combat boots and jumped out of military vehicles often landing/rolling on hard\uneven surfaces, and landing on various body parts. During her military service, the Veteran received treatment at military medical facilities for various orthopedic issues, including her neck, back, both hips, and both knees. Her medical treatment consisted of anti-inflammatories, physical therapy, steroid injections, and pain medications. After discharge, she continued to have chronic orthopedic and arthritic pains related to her military service, including back pain, bilateral hip pain, sciatica of the bilateral lower extremities, and multiple joint pains. The examiner stated that the Veteran’s continued back surgery was as likely as not caused by or related to, or was a direct result of, the physical requirements of her military occupation. Based on the evidence of record and resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection for lumbar spine DDD, and left hip and bilateral knee osteoarthritis is warranted. The Veteran stated that her disabilities began in service, she received treatment in service, and, over the years, the disabilities have worsened. The Board notes that the Veteran is considered competent to report the observable manifestations of her claimed disabilities. See Charles v. Principi, 16 Vet. App. 465, 469-70 (1994) (lay testimony iterating knowledge and personal observations of witness are competent to prove that claimant exhibited certain symptoms at particular time following service). Additionally, as noted above, the private examiner opined that the Veteran’s lumbar spine and left hip and bilateral knee disabilities are at least as likely as not due to her military service. Therefore, resolving reasonable doubt in the Veteran’s favor, the Board finds that the criteria for service connection for lumbar spine DDD and left hip and bilateral knee osteoarthritis have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Regarding her sciatica of the bilateral lower extremities, the Veteran has been diagnosed with sciatica of the bilateral lower extremities. As such, element one under Wallin is met. Additionally, the Board has granted service connection for lumbar spine DDD. Thus, element two under Wallin is met. Turning to the nexus element, the evidence of record indicates that the Veteran has sciatica of the lower extremities associated with her low back disability. As the evidence of record establishes that the Veteran has sciatica of the lower extremities related to her service-connected lumbar spine disability, service connection for sciatica of the lower extremities is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 2. Entitlement to service connection for dental disability for treatment purposes Under VA regulations, compensation is only available for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150, including conditions of the mandible, maxilla, ramus, condyloid process, coronoid process, hard palate, and loss of teeth due to loss of substance of the body of the maxilla or mandible. See 38 C.F.R. § 4.150, Diagnostic Codes (DCs) 9900-9916. Compensation is also available for loss of teeth only if such is due to loss of substance of body of maxilla or mandible; bone loss through trauma or disease, such as osteomyelitis, must be shown for compensable purposes. The loss of the alveolar process as a result of periodontal disease is not considered disabling. See 38 C.F.R. § 4.150, DC 9913. In addition, to be compensable, the lost masticatory surface for any tooth cannot be restorable by suitable prosthesis. 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 and cannot be considered for compensation purposes. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150. Analysis The Veteran has been diagnosed with, among other things, periodontal disease, gingivitis, and severe bone loss and decay. She contends that her dental disorders are due to military service. She stated that, while in service, she had a root canal that caused an infection, and she had to be sent for emergency service. The infection was so severe that five rubber drains had to be surgically inserted into her mouth to help the infection drain. It was never determined what caused the severe infection, but her face was entirely distorted due to the infection. She stated that since that date, she has had severe periodontal disease that has been an ongoing issue and required extensive dental treatment. Additionally, her gums had deteriorated to the extent that her bone had been exposed which resulted in sensitivity to heat and cold, numerous root canals, gum tissue grafting, bones grafts, and implants. In April 2009, the Veteran saw her dentist. On that day, she presented with gingival inflammation and pocketing with slight bleeding upon probing. In October 2014, the Veteran saw her dentist. She was complaining of pain in her left lower jaw. The dentist noted that tooth number 22 had severe bone loss and decay. The dentist noted that it was non-restorable. It was extracted. In March 2015, the Veteran submitted a statement from her dentist. The dentist stated that the Veteran had active periodontal disease. In July 2018, the Veteran was diagnosed with decay and failing dentition. During her Board hearing, the Veteran testified that while in service, she was treated for gum disease. Since service, she has had multiple dental procedures, to include bone and gum grafts, teeth removed, implants, and numerous bridges. Regarding bone loss, she stated that the dentist pulled a tooth, and she was told that she had bone loss. In February 2020, the Veteran submitted an opinion from her dentist. The dentist opined that the Veteran’s periodontal problems are more likely as not (greater than 50 percent) due to her military service. The dentist stated during her service, the Veteran had a root canal. Thereafter, she developed an infection which spread to her jawline, affecting other teeth. Treatment involved at least six other root canals. She was hospitalized at Walter Reed Hospital for four days to address the infection. While in the military, she had approximately 20 dental procedures beyond routine dental care and annual visits, including six additional root canals, ten crowns, gum removal, and three teeth pulled. After her discharge from the Army, she required ongoing periodontal surgical procedures and deep tissue cleanings. Additionally, she has had several teeth removed and prosthetics implanted, all at a relatively young age. The Veteran also had several crowns and two bridges where teeth had been pulled in the military. Based on the evidence of record, the Board finds that the Veteran does not have a dental disability for VA compensation purposes. While the Veteran’s treatment records are unavailable for review, the Veteran has not asserted that she experienced tooth loss due to dental trauma or disease. The treatment that she received while on active service constituted dental treatment and is not considered a dental disability due to in-service trauma for VA compensation purposes. See 38 C.F.R. § 3.306(b)(1); VAOGCPREC 5-97. Although the Veteran testified that she suffered loss of bone and her treatment records note that she had bone grafted, and severe bone loss and decay, the Veteran has not submitted any competent evidence showing that she suffers from any of the disabilities included under 38 C.F.R. § 4.150, such as chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss of the mandible, nonunion and malunion of the mandible or maxilla, temporomandibular articulation or limited jaw motion, loss of the ramus, loss of the condyloid process, or loss of the hard palate. The treatment records do not show such disabilities. Instead, her dentists have confirmed her decay, gingivitis, and periodontal disease diagnoses none of which can be considered for compensation purposes. See id. As the Veteran has not been diagnosed with a dental disability for which service connection may be granted, the claim for service connection for dental condition must be denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of proof of present disability there can be no successful claim). In reaching this conclusion, 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 helpful to this claimant. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND The Veteran has been diagnosed with an acquired psychiatric disorder, to include depression, anxiety, and insomnia. In February 2020, the Veteran submitted an opinion from her treating physician. The physician opined that it is more likely than not that the Veteran’s orthopedic and arthritis conditions is due to her exposure to the physical requirements of military duties. He stated that as a result of the chronic pain caused by orthopedic and arthritic conditions, and the gradual loss of the ability to do enjoyable activities, including the loss of her job, the Veteran had become increasingly depressed and anxious over the last several years, and she suffers from chronic insomnia. The Board notes that the private examiner used the incorrect standard for addressing aggravation in the context of secondary service connection, finding that the Veteran’s claimed conditions “is more likely than not.” For secondary service connection to be granted on the basis of aggravation it must be shown that there was any increase in severity of the nonservice-connected injury that is proximately due to or the result of a service-connected injury. 38 C.F.R. § 3.310 (emphasis added). As such, a remand is necessary for a VA examiner to apply the correct standard. The Board notes that a dental claim encompasses a claim for VA outpatient dental treatment. Mays v. Brown, 5 Vet. App. 302, 306 (1993); 38 C.F.R. § 4.150 (setting forth dental and oral conditions for which compensation may be paid); 38 C.F.R. § 17.161 (setting forth criteria for authorization of outpatient dental treatment). The regulation relating to service connection of dental conditions for treatment purposes was amended, effective February 29, 2012, in order to clarify existing regulatory provisions and to reflect the respective responsibilities of the Veterans Health Administration (VHA) and Veterans Benefits Administration (VBA) in determinations concerning eligibility for dental treatment. See Proposed Rules, Dental Conditions, 76 Fed. Reg. 14,600 (Mar. 17, 2011); Final Rule, Dental Conditions, 77 Fed. Reg. 4469 (Jan. 30, 2012). The amended version of 38 C.F.R. § 3.381 clarifies that VBA will adjudicate a claim for service connection of a dental condition for treatment purposes after VHA determines that a veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161 and requests that VBA make a determination on relevant questions. 38 C.F.R. § 3.381(a). In this case, the claim for entitlement to service connection for a dental disability for purposes of VA outpatient treatment has not been adjudicated or referred to VHA for a determination on the relevant questions. Accordingly, the Board finds that remand, rather than referral, is appropriate. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated private and VA treatment records. 2. Schedule a VA examination to determine the nature and etiology of the Veteran’s acquired psychiatric disorder. The complete record, to include a copy of this remand and the claims folder, must be made available to and reviewed by the examiner in conjunction with the examination. The examination report must include a notation that this record review took place. Based on a review of the entire record, the examiner should respond to the following: a. Identify any current psychiatric disorder. b. Determine if it is at least as likely as not (a 50 percent or greater probability) that any psychiatric disorder was caused by or aggravated (i.e. permanently worsened beyond the normal progression of that disease) by her service-connected disabilities? If the examiner finds that any psychiatric disorder was aggravated by the service-connected disabilities, the examiner must identify the baseline level of the disability that existed before aggravation by the service-connected disabilities occurred. The supporting rationale for all opinions expressed must be provided. 3. Refer the claim of entitlement to service connection for outpatient dental treatment to VHA for adjudication of Class eligibility in the first instance under 38 C.F.R. § 3.381 (effective February 29, 2012). See 38 C.F.R. § 17.161. 4. After any further development deemed necessary, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, furnish the Veteran and her representative a Supplemental Statement of the Case and afford them the opportunity to respond before the file is returned to the Board for further consideration. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Moore 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.