Citation Nr: 21028657 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 17-42 425 DATE: May 11, 2021 ORDER Entitlement to service connection for dental trauma, to include entitlement to service connection for a dental condition for the purpose of establishing eligibility for outpatient dental treatment, is denied. Entitlement to a cardiac infection to include as secondary to dental trauma is denied. REMANDED Entitlement to a rating in excess of 30 percent for hearing loss is remanded. FINDINGS OF FACT 1. The Veteran did not suffer from dental trauma in service, and he is not eligible for outpatient dental treatment. 2. The Veteran does not have a cardiac infection that had onset in service or that was caused by or related to his active service, to include as secondary to dental trauma. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for dental trauma, to include entitlement to service connection for a dental condition for the purpose of establishing eligibility for outpatient dental treatment, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303, 3.381, 4.150, 17.161. 2. The criteria for entitlement to a cardiac infection to include as secondary to dental trauma have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1953 to February 1955. This matter comes before the Board of Veterans' Appeals (Board) from February 2016 and July 2017 rating decisions of the Department of Veterans' Affairs (VA) Regional Office (RO). In his August 2017 substantive appeal, the Veteran requested a hearing before a member of the Board but failed to appear at his scheduled hearing. In May 2019, the Veteran claimed that he never received notification of the hearing. The record contains a copy of a notification letter dated March 13, 2019 that informed the Veteran of the date, time, and location of his requested hearing. There is no indication in the record, such as returned mail, that the Veteran did not receive notification of his April 15, 2019 videoconference hearing. In the absence of clear evidence to the contrary, VA is presumed to have mailed the letter to the Veteran and the presumption of regularity attached. Romero v. Tran, 2021 U.S. Vet. App. Vet. Claims, No. 19-3687 (2021). The Board notes that the Veteran's service treatment records are missing and presumed destroyed in the 1973 fire at the National Personnel Records Center. The Board finds that additional efforts to obtain these records would be futile. See 38 U.S.C. § 5103A(b)(3). The Board has considered the U.S. Court of Appeals for Veterans Claims (Court) statement in Washington v. Nicholson, 19 Vet. App. 362, 371 (2005) that: [I]n cases where, as here, the appellant's SMR's have been lost or destroyed, the Board's obligation to provide well-reasoned findings and conclusions to evaluate and discuss all of the evidence that may be favorable to the appellant, and to provide an adequate statement of the reasons or bases for its rejection of such evidence is heightened. The Board has undertaken its analysis with this heightened duty in mind. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the non-service-connected disease, will be service-connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service-connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. In cases of aggravation of a veteran's non-service-connected disability by a service-connected disability, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.322. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for dental trauma, to include entitlement to service connection for a dental condition for the purpose of establishing eligibility for outpatient dental treatment, is denied. The Veteran is seeking service connection for dental trauma. The Board notes that a claim for service connection for a dental condition is also considered a claim for VA outpatient dental treatment. Mays v. Brown, 5 Vet. App. 302, 306 (1993). The Veteran has claimed that during his active service, he was hit in the mouth with a gun and lost his front teeth. The Veteran's statements are somewhat vague and inconsistent regarding exactly which teeth were affected by the alleged trauma, as well as the exact nature of the trauma, but it appears he is claiming that both upper and lower front teeth were either damaged or knocked out as a result of trauma and had to be repaired and/or replaced. In his August 2017 substantive appeal, he claimed to have lost six teeth due to trauma. A Dental Disability Benefits Questionnaire submitted by a private dentist in July 2016 reflects that the Veteran is currently missing all his upper teeth and his anterior lower teeth, although it appears that not all of the missing teeth are attributable to the Veteran's alleged inservice trauma. According to the provider, the Veteran reported that he lost his lower mandibular teeth and fractured his anterior maxillary teeth due to mouth trauma in 1954. However, in an April 2016 statement, his reported that his top front teeth were replaced with prosthetics and that his lower teeth were filed down, not removed. In his August 2017 substantive appeal, he claimed he lost both upper and lower teeth. Dental disabilities which may be awarded compensable disability ratings are now 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, 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. The Veteran has not presented evidence that he suffers from any of these disabilities. If there are private dental records that show treatment for these disabilities, the Veteran has neither submitted them nor requested VA's assistance in obtaining them. The Board again notes that there are no service treatment records that can corroborate the Veteran's claims that he sustained dental trauma in service. The Veteran did not report any inservice dental trauma until 2015 when he filed his current claim, more than sixty years after the alleged injury. Although the Veteran has been receiving treatment from the VA since at least 2001, the only dental trauma he reported prior to his 2015 claim was at a June 2003 VA mental health appointment when the Veteran described an injury to his tooth while working at Boscov's, which resulted in a lawsuit against the company. The Board may consider a lengthy period of time without medical complaints related to the claimed condition as a factor in resolving a claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Furthermore, the inconsistencies in the Veteran's statements describing his alleged dental trauma (that is, the conflicting accounts regarding which teeth were damaged and the nature of those injuries), undermine the credibility of the Veteran's testimony. In evaluating the evidence of record the Board has both the duty and authority to consider the credibility of and probative weight to be assigned to evidence. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Federal Circuit has also provided that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc." Buchanan v. Nicholson, 451 F3.d 1331, 1336-37 (Fed. Cir. 2006). Similarly, the Veterans Court has stated that "The credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character." Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Here, the Board finds that the Veteran's inconsistent accounts of inservice dental trauma lack credibility and have limited probative value. Accordingly, in the absence of any corroborating evidence, the Board finds the preponderance of the evidence weighs against finding that any inservice dental trauma occurred. However, even assuming that the Board conceded such trauma, service connection would not be warranted. According to the July 2016 Dental DBQ, the Veteran's loss of teeth is not due to loss of substance of the body of the mandible or maxilla and his tooth loss can be restored by suitable prostheses. Accordingly, he does not have a qualifying dental disability under 38 C.F.R. § 4.150 for which compensation can be granted. Under 38 U.S.C. § 1712, outpatient dental services and treatment, and related dental supplies, may be furnished for a dental condition or disability when certain enumerated conditions are met. 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 as provided for in 38 C.F.R. § 17.161. See 38 C.F.R. §§ 3.381, 17.161. Legal authority describes various categories of eligibility for VA outpatient dental treatment, to include Veterans having a compensable service-connected dental condition (Class I eligibility); one-time treatment for Veterans having a non-compensable service-connected dental condition, provided they apply for treatment within a year after service (Class II eligibility); those having a non-compensable service-connected dental condition adjudicated as resulting from a combat wound or other service trauma (Class II(a) eligibility); those who were detained as a Prisoner of War (POW) (Class II(b) and Class II(c) eligibility); those who made prior applications for, and received, dental treatment from VA for noncompensable dental conditions but were denied replacement of missing teeth that were lost during any period of service prior to his or her last period of service (Class IIR (Retroactive) eligibility); those having a dental condition professionally determined to be aggravating disability from an associated service-connected condition or disability (Class III eligibility); those whose service-connected disabilities are rated at 100 percent by schedular evaluation or who are entitled to the 100 percent rating by reason of individual unemployability (Class IV eligibility); those who participate in a rehabilitation program under 38 U.S.C. chapter 31 (Class V eligibility) and those who are scheduled for admission or who are otherwise receiving care and services under chapter 17 of 38 U.S.C. (Class VI eligibility). 38 U.S.C. § 1712; 38 C.F.R. § 17.161. Regarding Class II eligibility, the following principles apply to dental conditions noted at entry and treated during service: (1) teeth noted as normal at entry will be service-connected if they were filled or extracted after 180 days or more of active service; (2) teeth noted as filled at entry will be service-connected if they were extracted or if the existing filling was replaced after 180 days or more of active service; (3) teeth noted as carious but restorable at entry will not be service-connected on the basis that they were filled during service; however, new caries that developed 180 days or more after such a tooth was filled will be service-connected; (4) teeth noted as carious but restorable at entry, whether or not filled, will be service-connected if extraction was required after 180 days or more of active service; (5) teeth noted at entry as non-restorable will not be service-connected regardless of treatment during service; (6) teeth noted as missing at entry will not be service-connected regardless of treatment during service. 38 C.F.R. § 3.381 (d). The following will not be service connected for treatment purposes: (1) calculus; (2) acute periodontal disease; (3) third molars, unless disease or pathology of the tooth developed after 180 days or more of active service, or was due to combat or in-service trauma; (4) impacted or malposed teeth, and other developmental defects, unless disease or pathology of these teeth developed after 180 days or more of active service. 38 C.F.R. § 3.381 (e). Teeth extracted because of chronic periodontal disease will be service connected only if they were extracted after 180 days or more of active service. 38 C.F.R. § 3.381 (e). In the present case, the Veteran is not service-connected for any dental disorder, and the Board has concluded that his accounts of inservice dental trauma are not credible. The Veteran is also not service-connected for any disability that has been shown to possibly be aggravated by his dental disorder, and he does not have a total disability rating of 100 percent. The Veteran did not apply for dental treatment within one year of service. He separated from service in February 1955 and the Board can find no evidence he applied for dental treatment until he filed his February 2015 claim for loss of teeth. The Veteran was not a POW and that he did not incur any wounds in combat. Finally, the Veteran was not participating in a rehabilitation program under 38 U.S.C., Chapter 31, and fixing his dental problems was not medically necessary for a medical condition currently under treatment by VA. For these reasons, the Board finds that the Veteran does not qualify for Class I, Class, II, Class II(a), (b), (c), IIR, III, IV, V or VI eligibility. In conclusion, the Veteran is ineligible for VA dental treatment as a matter of law because he did not apply for dental treatment within the appropriate time period. He has also failed to provide any competent medical evidence that any dental disability he suffers from, including loss of teeth, is related to his military service seventy years ago. Accordingly, entitlement to service connection for dental trauma is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to a cardiac infection secondary to dental trauma is denied. The Veteran seeks service connection for a cardiac infection, which he contends is secondary to in-service dental trauma. When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for a cardiac infection disability is not warranted. Notably, a March 2015 VA treatment report indicated that the Veteran had a history of pericarditis "about 2 years ago". As there is a current diagnosis of a cardiac infection, the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). The Board finds that while the records shows a currently diagnosed cardiac infection disability, the preponderance of the evidence weighs against finding this disability had onset in service or is caused by or related to the Veteran's active service, to include as secondary to a service connected disability. Regarding service connection on a direct basis, the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection. Additionally, there is no competent evidence or opinion even suggesting that there exists a medical nexus between a current cardiac infection disability and the Veteran's service and neither the Veteran nor his representative have presented or identified any such existing medical evidence or opinion. The Board finds that the competent evidence of record, while showing the currently diagnosed cardiac infection disability, does not demonstrate that the Veteran's cardiac infection disability is related to the Veteran's service. Regarding service connection on a secondary basis, the Board concludes that the preponderance of the evidence is against finding that any cardiac infection is proximately due to or the result of or aggravated beyond its natural progression by a service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). While the Veteran has claimed that he developed a cardiac infection secondary to service-connected dental trauma, as the Board has discussed above, the Veteran is not service-connected for dental trauma or any other dental disability. Furthermore, even if the Veteran were service connection for a dental disability, the Veteran has not submitted any competent medical evidence showing such a dental disability caused or aggravated a cardiac infection. The Board also notes that the Veteran was not provided with a VA examination and opinions to assess the current nature and etiology of his claimed cardiac infection. However, VA need not conduct an examination with respect to the claim on appeal, as information and evidence of record contains sufficient competent medical evidence to decide the claim. See 38 C.F.R. § 3.159(c) (4). Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. Simply stated, the standards of McLendon are not met in this case as there is no credible evidence that the cardiac infection disability manifested in service or within a year of separation from service and there is also no competent evidence suggesting that this disability are otherwise associated to service to include as secondary to a claimed dental disability. Thus, remand for VA examinations is not necessary. All Disabilities The Board notes the Veteran and his representative's contentions regarding the etiology of his claimed dental and cardiac disabilities. To the extent that the Veteran and his representative themselves contend that a medical relationship exists between his claimed dental and cardiac disabilities and his service, the Board acknowledges that the Veteran is competent to testify as to his observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). In the instant case, however, the Board finds that dental and cardiac disabilities are not disabilities subject to lay diagnosis as these diagnoses require medical training. More significantly, the Veteran and his representative do not have the medical expertise to provide an opinion regarding the claimed dental and cardiac disabilities etiologies. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). Thus, the Veteran and his representative's assertions that there is a relationship between his claimed dental and cardiac disabilities and his service are not sufficient in this instance and are outweighed by other probative evidence of record. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In sum, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran's claims of entitlement to service connection. The benefit-of-the-doubt rule does not apply, and the claims must be denied. 38 U.S.C. § 5107(b). REASONS FOR REMAND 1. Entitlement to a rating in excess of 30 percent for hearing loss is remanded. The Veteran seeks a higher rating for his hearing loss disability, currently rated as 30 percent disabling. The Veteran was last afforded a VA examination in July 2016. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his hearing loss disability. Additionally, at his July 2016 VA examination, the Veteran reported right ear pain and the sensation that there is a "small ball" in the ear canal. VA outpatient treatment records note complaints of dizziness/vertigo. It is unclear from the record whether these symptoms are related to the Veteran's inservice hazardous noise exposure or were proximately caused or aggravated beyond their natural progression by the Veteran's service-connected hearing loss disability. Accordingly, on remand, an addendum medical opinion should be obtained to address the etiology of these symptoms. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (as the rating criteria do not otherwise discuss, let alone account for, other functional effects, such as dizziness, vertigo, ear pain, etc., the Court cannot conclude that the rating schedule, on its face, contemplates effects other than difficulty hearing or understanding speech). The matters are REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disability on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. 2. After the development requested above has been completed to the extent possible, the Veteran should also be scheduled for VA examination before an appropriate physician to determine the current level of severity of his service-connected bilateral hearing loss disability. The Veteran's claims file and a copy of this remand must be provided to the examiner for review in conjunction with this examination, and the examination reports should reflect review of these items. All necessary tests and studies should be performed, and the examiner should describe in detail all symptomatology associated with the Veteran's bilateral hearing loss disability. The examiner should also provide an opinion concerning the impact of the Veteran's service-connected bilateral hearing loss disability on his ability to work and provide an opinion on whether the Veteran's right ear pain, dizziness, and vertigo are at least as likely as not related to his inservice hazardous noise exposure or proximately due to or aggravated beyond their natural progression by his service-connected hearing loss disability. 3. Thereafter, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. James DeFrank Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.D. Anderson, 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.