Citation Nr: 21031759 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 19-00 884 DATE: May 24, 2021 ORDER Entitlement to service connection for a right hip disorder is denied. Entitlement to service connection for a dental disorder (claimed as residuals of dental surgery) for compensation purposes is denied. REMANDED Entitlement to service connection for a dental disorder (claimed as residuals of dental surgery) for outpatient dental treatment purposes is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's right hip disorder is related to service. 2. The preponderance of the evidence is against finding that the Veteran had during the period on appeal a dental disability for which compensation is payable. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right hip disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for a dental disorder for compensation purposes have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.381, 4.150, 17.161. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1961 to April 1965. He served honorably in the U.S. Navy. The Board thanks the Veteran for his service to our country. The Veteran testified before the undersigned at a Board videoconference hearing in February 2021. A transcript of the hearing is of record. 1. Entitlement to service connection for a right hip disorder is denied. The Veteran contends that service connection for a right hip disorder is warranted as he injured the right hip in service. The Board finds that service connection is not warranted. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may also 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. To substantiate a claim of service connection, there must be evidence of: (1) a current disability; (2) a disease, injury, or event in service; and (3) a nexus or causal relationship between the claimed disability and the disease, injury, or event in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, including arthritis, may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty. 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In this case, in an October 1961 service treatment record, the Veteran complained of left hip pain. In a radiographic report for the left hip, the provider noted no abnormalities. The provider rendered an assessment of strained ligament. There are no notations of right hip complaints or treatment in service. In a March 1965 separation examination, on clinical evaluation, no abnormalities were noted except for identifying body marks, scars, and tattoos. In an April 2010 note, the Veteran complained of right hip pain. A November 2010 note noted osteoarthritis of the hip. In a June 2017 primary care nursing note, the Veteran complained of right hip pain and related that he thought it was from a football injury in the Navy. The provider noted that his last x-ray in 2010 noted moderate degenerative changes. In a July 2017 letter to the Veteran regarding recent right hip imaging results, the provider rendered an impression of mild degenerative changes which had not significantly changed and stated that he had mild arthritis and some calcium deposits that could be from an old injury. In an October 2017 VA examination report, the examiner noted a diagnosis of right hip osteoarthritis. The Veteran reported that the right hip was injured while playing football when 6 guys jumped on him and he heard a 'pop.' He reported that he was never told that it was broken. He reported that the condition of the right hip had stayed the same since onset and that he had constant hip pain and woke up nightly yelling in pain. He reported daily pain of 8 to 10 on a scale of 10. On examination, the examiner noted flexion limited to 90 degrees, extension limited to 15 degrees, abduction limited to 25 degrees, adduction limited to 20 degrees, and external and internal rotation limited to 20 degrees. (Normal range of motion is 125, 30, 45, 25, 60, and 40, respectively.) The examiner noted pain on motion which contributed to functional loss. The examiner concluded that the disorder is less likely than not related to service as military records do not suggest that he had any persistent right hip problems following the football injury and no imaging was located documenting a fracture at the time. The examiner remarked that the arthritic changes are very likely due to age. In an August 2018 statement, the Veteran relayed being injured in California. In a November 2018 statement, he relayed injuring his right hip when he slipped and fell preflighting an airplane while stationed in California. In a November 2018 statement, his spouse stated that they were engaged when he was stationed in California and that he had sent her a letter letting her know that he had hurt his right hip while preflighting an airplane. At the February 2021 hearing, the Veteran testified that when he was stationed in California, a plane came in and he went to preflight the plane for the next pilot. He testified that while he was up there, he cleaned the windshield for the pilot, removing the oil, and as he was coming down he stepped in some oil and slipped completely off the wing, hitting his right hip on the concrete. He testified that he saw the doctor and that it was quite a while before he was able to return to preflighting airplanes. He testified that he received outpatient treatment when he visited sick bay or the doctor and that he was taking pills and shots but that he did not exactly recall what other treatment he received. He testified that he was on light duty for one and a half months to two months before he returned to full duty. When asked about the football injury that he had reported to the VA examiner, the Veteran testified that he did not tell the doctor exactly what happened and that when the doctor asked about it, he said, "well, maybe playing football." He testified that he did not want to get involved with VA on his hip at the time and that he did not want the Navy to take any responsibility because he thought it would be something simple that he could take care of. He did not explain how he did not want to get involved with VA on his hip when he had a claim for a right hip disorder before VA. The Board finds that the lay statements and testimony regarding the right hip injury incurred while preflighting the plane are not credible as they are not consistent with the evidence of record. The Veteran initially reported to a treatment provider and the VA examiner that he had injured his right hip playing football and later related the injury to the fall from an airplane while preflighting it. Further, the Veteran testified that he went to sick bay or the doctor, took pills and shots, and was placed on light duty for one and a half to two months before returning to full duty. However, this is inconsistent with the medical evidence of record: service treatment records include no complaints of or treatment for a right hip injury or documentation of him being placed on a profile. Given that the service treatment records show treatment for left hip pain, left foot treatment, treatment for ear infections, sebaceous cyst assessment, an upper respiratory infection with sore throat, treatment for rashes, and treatment for headaches, the Board finds it is reasonable to assume that treatment for right hip problems would also be documented in the service treatment records if he had gone to sick bay, taken pills and shots, and had been placed on light duty. See Seng v. Holder, 584 F.3d 13, 19 (1st Cir. 2009) (noting that, notwithstanding the declarant's intent to speak the truth, statement may lack credibility because of faulty memory). In a March 2021 letter from a private treatment provider, the Veteran reported years of pain in his right hip. He reported having imaging done in 2017 which showed extensive arthritis in his right hip. He reported a history of a major fall on his right hip in the early 1960s when he was working on an airplane and fell from a 3- to 4 foot height after slipping on oil. He reported that there was no fracture at the time but extensive bruising and pain. The doctor concluded that the in-service injury "cannot be ruled out as a contributing factor" for his right hip arthritis pain. However, the 2017 imaging showed "mild degenerative changes" and the provider stated that he had "mild arthritis" rather than "extensive arthritis"; further, as determined above, lay statements as to the claimed in-service fall while preflighting the plane are not credible. As the private treatment provider's opinion is based on the report of extensive arthritis in 2017 and the non-credible statements, it is afforded little to no probative value. Further, the statement that an in-service injury cannot be ruled out as a contributing factor indicates a possibility and not the level of probability necessary for a medical opinion to support a grant of service connection. The Board finds that the preponderance of evidence is against the Veteran's claim. As stated by the VA examiner, service records suggest no persistent right hip problems following the claimed football injury: service treatment records contain no complaints, findings, treatment, or diagnosis of a right hip injury or disorder and at separation, on clinical evaluation, his lower extremities and musculoskeletal system were noted to be normal and the examiner concluded that he was qualified for release and for the performance of duties at his rate at sea and on foreign shore. Further, as noted by the 2017 examiner, no imaging documented a fracture in service. Rather, the examiner concluded that the osteoarthritis was more likely age-related. The Board acknowledges the Veteran's treatment provider's notation that mild arthritis "could be" from an old injury; however, an "old injury" is not probative of an in-service injury. Further, "could be" is too speculative to support a grant of benefits; it does not meet the "at least as likely as not" standard. With respect to continuity of symptomatology, the Board acknowledges the Veteran's report that the condition of his right hip had stayed the same, with no progression, since its onset following a football injury. However, this is inconsistent with the evidence of record: while in the 2017 examination, he reported constant pain and was noted to have abnormal range of motion with pain on motion contributing to functional loss, as noted above, there are no in-service notations of a right hip disorder and no abnormalities of the right hip were noted at separation. Further, the evidence of record does not reflect manifestations of right hip osteoarthritis within one year of separation from service; the earliest reference to a right hip disorder is found in the April 2010 note. Hence, after reviewing all the evidence of record, the Board finds that the preponderance of the evidence is against finding that service connection is warranted for the right hip disorder. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The claim is, therefore, denied. Gilbert, 1 Vet. App. at 55; 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for a dental disorder (claimed as residuals of dental surgery) for compensation purposes is denied. The Veteran contends generally that service connection is warranted for residuals of in-service dental surgery. The Board finds that service connection for a dental disorder for compensation purposes is not warranted. In the VA benefits system, dental disabilities are treated differently than medical disabilities. Disability compensation is only available for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150, including 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, and 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. Furthermore, dental conditions such as 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 but will not be considered for compensation. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150. However, impacted or malposed teeth, and other developmental defects, will not be considered service-connected for treatment purposes. 38 C.F.R. § 3.381(f)(4). Dental care can also be provided in cases where a dental disability is due to combat wounds or other service trauma. 38 U.S.C. § 1712; 38 C.F.R. § 3.381. The Veteran's initial dental examination shows that tooth numbers 1, 13 through 18, 30, and 32 were missing at entrance and that tooth numbers 2 through 12, 19, 29, and 31 were extracted in service. In an October 2017 VA examination report, the examiner rendered a diagnosis of complete edentulism due to caries and noted retained root of tooth number 22. No other oral or dental disorders were noted. The examiner noted no anatomical loss or bony injury of the mandible and no anatomical loss or bony injury of the maxilla. The examiner concluded that the Veteran had anatomical loss or bony injury of teeth which was not due to loss of substance of body of the maxilla or mandible without loss of continuity and not due to trauma or disease. The examiner concluded that masticatory surfaces could be restored by suitable prosthesis. There is no evidence of anatomical loss or bony injury of the mandible or the maxilla. Accordingly, the preponderance of the evidence is against finding that the Veteran has loss of teeth due to loss of substance of body of the maxilla or mandible without loss of continuity. Because the Veteran is not shown to have one of the dental disorders listed under 38 C.F.R. § 4.150, a compensable dental condition is not shown. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Service connection of a dental disorder for compensation purposes is, therefore, denied. Gilbert, 1 Vet. App. at 55; 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for a dental disorder (claimed as residuals of dental surgery) for outpatient dental treatment purposes is remanded. The Veteran appears to contend that service connection for treatment purposes is warranted, stating that the dentures issued in service need to be replaced with new dentures or implants. A claim of 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). In this case, however, the August 2018 rating decision merely denied the Veteran's dental claim for VA compensation purposes. Thus, the issue of dental treatment was never developed or adjudicated. Accordingly, the Board remands the dental treatment issue to the appropriate AOJ/VA Medical Center for adjudication in the first instance. The matters are REMANDED for the following action: Please develop and adjudicate the issue of entitlement to service connection for residuals of dental surgery for outpatient dental treatment purposes and provide the Veteran an SSOC on this issue if the claim is not granted in full. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Vashaw, 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.