Citation Nr: 21032082 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 14-28 387A DATE: May 25, 2021 ORDER Entitlement to service connection for a dental disability for treatment purposes is denied. Entitlement to service connection for a dental disability for compensation purposes is denied. Entitlement to service connection for a heart disability, to include as related to a dental disability, is denied. Entitlement to service connection for erectile dysfunction is denied. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to compensation for residuals of a colonoscopy under 38 U.S.C. § 1151 is remanded. FINDINGS OF FACT 1. The Veteran did not experience in-service dental trauma as defined by regulation. 2. The Veteran does not have impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla, and his tooth extractions were not due to loss of the substance of the body of the maxilla or mandible. 3. The preponderance of the evidence weighs against associating a heart disability with any incident of service. 4. The preponderance of the evidence weighs against associating erectile dysfunction with any incident of service. CONCLUSIONS OF LAW 1. The criteria for service connection for a dental disability for treatment purposes are not met. 38 U.S.C. §§ 1110, 1131, 1712; 38 C.F.R. §§ 3.303, 3.381, 4.150, 17.161. 2. The criteria for service connection for a dental disability for compensation purposes are not met. 38 U.S.C. §§ 1110, 1131, 1712; 38 C.F.R. §§ 3.303, 3.381, 4.150. 3. The criteria for entitlement to service connection for a heart disability have not been met. 38 U.S.C. §§ 1110, 1131, 1132, 5103A, 5107; 38 C.F.R. § 3.303. 4. The criteria for entitlement to service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1110, 1131, 1132, 5103A, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1971 to May 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2012 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In November 2017, the Veteran testified before the undersigned Veterans Law Judge by videoconference. A hearing transcript is of record. In light of the treatment records that have been obtained and associated with the record, the requested medical opinions that have been obtained, and the further adjudicatory actions taken by the Agency of Original Jurisdiction (AOJ), the Board finds that there has been substantial compliance with the remand requests concerning the claims of entitlement to service connection for a dental disability for treatment and compensation purposes, a heart disability, and erectile dysfunction. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141 (1999). Service Connection In general, service connection may be established for disability due to disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be established for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d). To establish a service connection for a disability, a Veteran must show: (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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163(Fed. Cir. 2004). A disability may be service-connected if the evidence of record shows that the Veteran currently has a disability that was chronic in service or that was chronic as defined by regulation with continuity of symptomatology demonstrated after service. 38 C.F.R. § 3.303; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A disability that is proximately due to or the result of a service-connected disability shall be service-connected. When service connection is established for a secondary disability, the secondary disability shall be considered a part of the original disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability, which is aggravated by a service-connected disability. In such an instance, the Veteran is compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a dental disability for treatment purposes 2. Entitlement to service connection for a dental disability for compensation purposes 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. §§ 3.381, 17.161. To establish entitlement to service connection for VA outpatient dental treatment purposes for a tooth, the Veteran must have sustained a combat wound or other in-service trauma. 38 U.S.C. § 1712; 38 C.F.R. § 3.381(b). Effective February 29, 2012, VA amended 38 C.F.R. § 3.381 primarily to clarify the respective responsibilities of VBA and VHA in determinations concerning eligibility for dental treatment. Fed. Reg. 4469 (Jan. 30, 2012). The significance of finding that a dental condition is due to in-service trauma is that a Veteran will be eligible for Class II(a) VA outpatient dental treatment, without being subject to the usual restrictions of a timely application and one-time treatment. 38 U.S.C. § 1712(a)(1)(C); 38 C.F.R. § 17.161(c). A January 1972 service medical record shows that the Veteran experienced scaling and severe gingivitis. In February 1973, the Veteran was counseled regarding flossing. He was treated for gingivitis. In October 1974, he had two wisdom teeth removed. In November 1974, he had another two wisdom teeth removed. The April 1975 service separation examination report shows that the Veteran had a normal head, mouth, and throat. On an April 1975 Report of Medical History, the Veteran indicated that he did not experience severe tooth or gum trouble. After service, an August 2008 private treatment record shows that the Veteran had infected teeth. At that time, he had teeth numbers 2, 3, 15, 16, 23, 25, 30, and 31 removed. A September 2008 letter from S.E.F., D.D.S., states that the Veteran's teeth were removed at the request of his cardiologist due to his medical condition. The cardiologist felt that the Veteran's tooth infection could complicate or possibly make open-heart surgery fail. In another September 2008 letter, Dr. F. stated that it was a medical necessity for the Veteran to undergo extraction of the teeth to prevent postoperative endocarditis. At an April 2012 VA examination, the examiner diagnosed periodontal disease and unspecified acquired absence of teeth 1, 16, 17, and 32 with no residuals. The examiner noted that the Veteran's May 1971 service entrance examination report showed no missing teeth and no dental carries. The examiner noted that a January 1972 dental cleaning report showed heavy calculus and severe gingivitis. Wisdom teeth 1 and 32 were extracted in October 1974, and wisdom teeth 16 and 17 were extracted in November 1974. At the Veteran's April 1975 separation examination, the Veteran reported no history of tooth or gum trouble. Examination was normal for head, face, scalp, mouth, and throat. The only teeth missing on exit examination were wisdom teeth 1, 16, 17, and 32. The examiner specified that there was no evidence of any dental condition or diagnosis related to service beyond the removal of four wisdom teeth and three dental cleanings. The examiner specified that the Veteran had the wisdom teeth extracted in the service with no residuals. The examiner stated that the Veteran's periodontal disease with heavy calculus formation was consistent with a long-standing condition which predated service entrance. The examiner stated that the available records provided no evidence of aggravation of the chronic gingival condition or any residual complications of any type from the extraction of the wisdom teeth. The examiner opined that the Veteran's dental condition was not caused by or a result of or related to service. The Board has thoroughly reviewed the service medical records and acknowledges that the Veteran received dental treatment during service. However, the term service trauma does not include the intended effects of therapy or restorative dental care and treatment provided during active service. 38 C.F.R. § 3.306(b)(1); VAOGCPREC 5-97 (1997), 62 Fed. Reg. 15566 (1997). No dental trauma is apparent in the service medical records, nor does it appear the Veteran has identified specific dental trauma in his statements of record. Therefore, the Board finds that service connection is not warranted for a dental disability for treatment purposes. Even if the Veteran had in-service dental trauma, or if the current dental condition was secondary to a service-connected condition, service connection for compensation purposes would still be denied. Under current VA regulations, compensation is only available for certain types of dental and oral conditions, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla. 38 C.F.R. § 4.150. Compensation is available for loss of teeth only if the loss of the tooth is due to loss of the substance of the body of the maxilla or mandible. In this case, the Veteran does not have impairment of the mandible, loss of a portion of the ramus, or a loss of a portion of the maxilla, as found in the April 2012 VA medical examination. The Veteran's April 2012 VA medical examination found that the Veteran had decay and periodontal disease along with many missing teeth. Therefore, it is not possible for the Veteran to receive compensation for a dental or oral condition. Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not compensable disabilities. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150. A thorough review of the record shows that the Veteran's current dental condition has been consistently diagnosed as periodontal disease and dental caries, to include at the VA examination. Periodontal disease and treatable carious teeth are not considered disabilities for which service connection may be established. Therefore, the claim for service connection must be denied. Although sympathetic to the Veteran's claim, the Board is without authority to grant eligibility to benefits simply because it might perceive the result to be equitable. 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). No equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress. Smith v. Derwinski, 2 Vet. App. 429 (1992); Office of Personnel Management v. Richmond, 496 U.S. 414 (1990). The Board finds that the preponderance of the evidence is against the claim, and therefore service connection for a dental disability for treatment and compensation purposes must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for a heart disability, to include as related to a dental disability The service medical records show that in May 1972, the Veteran underwent a chest X-ray for weight control. The interpreter noted that the degree of inspiration was not optimal. It was noted that the heart appeared to be enlarged. However, the radiograph interpreter reiterated that image probably represented a manifestation of poor inspiration. The aorta and bones were normal. A June 1972 service medical record shows that the Veteran experienced chest pain on the left side after running. An X-ray showed that the Veteran's heart was normal. The diagnosis was a normal chest. An April 1975 service separation examination report shows that the Veteran had a normal heart. On an April 1975 Report of Medical History, the Veteran indicated that he did not experience palpitation, pounding heart, or heart trouble. A March 2001 private treatment record shows that the Veteran recently had an abnormal electrocardiogram. It was noted that as far as the Veteran knew at that time he had never had heart problems. The diagnosis was aortic valve regurgitation. The Veteran was advised to lose weight, start a low cholesterol diet, and begin an exercise program. In March 2003, the Veteran underwent cardiac catheterization. In August 2008, the Veteran underwent an aortic valve replacement. An April 2008 private treatment record shows that the Veteran had infected teeth. At that time, he had teeth numbers 2, 3, 15, 16, 23, 25, 30, and 31 removed. A September 2008 letter from S.E.F., D.D.S., indicates that the Veteran's teeth were removed at the request of a cardiologist due to the Veteran's medical condition. The cardiologist felt that the Veteran's tooth infection could complicate or possibly make open-heart surgery fail. In another September 2008 letter, Dr. F. stated that it was a medical necessity for the Veteran to undergo extraction of the teeth to prevent postoperative endocarditis. At a May 2019 VA examination, the examiner diagnosed congestive heart failure, heart valve replacement, resolved endocarditis, and aortic stenosis. The Veteran had a pacemaker. The examiner opined that the Veteran's heart disabilities were less likely than not incurred in or caused by service or any incident of service, to include in-service dental treatment or reported erectile dysfunction. The examiner stated that erectile dysfunction is an indication of peripheral vascular disease, and there was no indication of peripheral vascular disease in the lower extremities, no indications of coronary artery disease, and no records to indicate erectile dysfunction during service. The examiner specified that the Veteran's in-service circumcision would not cause aortic stenosis, congestive heart failure, or require implantation of the pacemaker. The examiner further noted that the Veteran had an in-service wisdom tooth extraction, but no records indicated that a bacterial infection occurred at the time. The Veteran has a current diagnosis of a heart disability. However, service connection cannot be granted for a heart disability as secondary to either a dental disability or erectile dysfunction, as service connection has not been granted for either a dental disability of erectile dysfunction. Service connection cannot be established for a secondary disability where the primary disability is not service-connected. 38 C.F.R. § 3.310. The Board further finds that the preponderance of evidence is against a finding that a current heart disability was caused or aggravated by active service. The Veteran has sought ongoing medical treatment with VA and private sources. However, none of the medical treatment providers has given any indication that the Veteran's heart disabilities could be related to service. The only evidence which provides any connection between the Veteran's heart disabilities and service comes from the Veteran's own statements. It is to be noted that the Board is not free to substitute its own judgment for a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). However, the Board is required to assess the credibility and weight to be given to the evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Board has considered the Veteran's lay statements. Although laypersons are competent to provide opinions on some medical issues, as to the specific issue in this case, whether the Veteran's heart disabilities were caused by active service, that issue falls outside the realm of common knowledge of a layperson due to the presence of multiple possible etiologies. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As a layperson, it is not shown that the Veteran possesses the medical expertise to provide an etiology opinion, and there are no competent etiology opinions are of record that support the claim. The Board places the most probative weight on the opinion offered by the May 2019 VA examiner. The VA examiner is an objective medical professional, who has the medical training and knowledge to perform and interpret the necessary medical tests. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for a heart disability, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. Entitlement to service connection for erectile dysfunction A January 1972 service medical record shows that the Veteran underwent circumcision. Laboratory testing found chronic inflammation of the foreskin. A April 1975 service separation examination report shows that the Veteran had a normal genito-urinary system. On an April 1975 Report of Medical History, the Veteran did not indicate that he experienced erectile dysfunction. At a May 2019 VA examination, the examiner diagnosed erectile dysfunction. The Veteran stated that he was unable to obtain and maintain erections following circumcision in 1972. The examiner opined that the Veteran's erectile dysfunction was less likely than not incurred in or caused by service or any incident of service, to include the chronic inflammation of the foreskin noted during service. The examiner noted that the Veteran was circumcised in January 1972, and he received post-operative care. The examiner found no reports or evidence in the record of erectile dysfunction. The examiner noted the Veteran's report of erectile dysfunction following circumcision, but the examiner remarked that circumcision was not a cause of erectile dysfunction. The examiner reiterated that there were no in-service complaints of erectile dysfunction, regardless of etiology. Although the Veteran experiences current erectile dysfunction, the Board concludes that the preponderance of the evidence is against a finding of a relationship to service. The Board is not free to substitute its own judgment for that of a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). However, the Board is required to assess the credibility and weight to be given to evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Board has considered the Veteran's laypersons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The lay statements describing the Veteran's difficulty obtaining and maintaining an erection are competent and credible. However, the Board finds that an opinion as to the etiology of erectile dysfunction is a medical issue that requires medical training due to multiple possible etiologies. The May 2019 VA examiner opined that it was less likely than not that the Veteran's erectile dysfunction was related to the Veteran's service. The Board finds the May 2019 VA examiner's opinion to be more probative than the Veteran's assertions. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The opinion of the VA examiner is highly probative because it was provided by a trained medical professional. The VA examiner specifically identified and discussed the Veteran's contention and theory concerning service and his current erectile dysfunction. In particular, the examiner considered the Veteran's statements. Accordingly, the May 2019 VA examiner's opinion is found to carry significant weight. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. Hayes v. Brown, 5 Vet. App. 60 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence); Wood v. Derwinski, 1 Vet. App. 190 (1992). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion reached. As is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467 (1993). The Veteran has not submitted any further medical evidence to support the contention that his erectile dysfunction is related to service. Accordingly, after a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against the claim. No causal connection between service and current erectile dysfunction is demonstrated by the competent evidence of record. The Board finds that the May 2019 VA examiner's opinion is the most persuasive evidence in this case. The Board is appreciative of the Veteran's service to our country. However, because the preponderance of the evidence is against the claim, the claim must be denied. As the preponderance of the evidence is against the claim of entitlement to service connection for erectile dysfunction, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a low back disability is remanded. In April 2020, the Board remanded the claim for service connection for a low back disability for an additional VA medical examination. The Board requested that an additional examination be provided so that a VA examiner might provide an additional opinion, specifically taking into account the Veteran's lay statements. In an August 2020 VA medical examination report and opinion, written in attempted compliance with the April 2020 remand requests, a VA examiner opined that a low back disability was less likely than not related to service, because the April 1975 service separation examination showed no complaints related to the current back condition. The Board notes that, in writing the August 2020 medical opinion, the VA examiner did not refer to the Veteran's lay statements regarding back disability symptomatology in service. Compliance with the Board's remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). Remand is required to obtain a medical opinion that complies with the April 2020 remand instructions. 2. Entitlement to compensation for residuals of a colonoscopy under 38 U.S.C. § 1151 is remanded. Regarding the claim for entitlement to compensation for residuals of a colonoscopy under 38 U.S.C. § 1151, the record shows that the Veteran underwent internal bleeding following a February 2011 colonoscopy procedure performed at a VA facility. The Veteran has indicated that the bleeding caused him to develop both irritable bowel syndrome and a psychiatric disability. In April 2018, the Board remanded the claim of entitlement to compensation for residuals of a colonoscopy under 38 U.S.C. § 1151, in part, for a VA psychiatric examination. The examiner was requested to opine whether it was at least as likely as not (50 percent or greater probability) that any additional psychiatric disability was caused by VA treatment of the Veteran's colonoscopy. If so, the examiner was requested to opine whether it was at least as likely as not (50 percent or greater probability) that any psychiatric disability caused by VA treatment was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault; or was an event not reasonably foreseeable. In a July 2019 VA psychiatric examination report and opinion, written in attempted compliance with the Veteran's April 2018 remand requests, a VA examiner opined that the Veteran's mental condition, diagnosed as other specified trauma and stressor related disorder, was at least as likely as not (50 percent or greater probability) caused by or a result of the Veteran's perception of a bleed following a colonoscopy at the VA. However, the examiner did not opine whether the diagnosed psychiatric disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault; or was an event not reasonably foreseeable. Compliance with the Board's remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). Remand is required to obtain a psychiatric opinion that complies with the April 2020 remand instructions. The matters are REMANDED for the following action: 1. After obtaining appropriate authorization, obtain any VA and private treatment records identified by the Veteran that are not already of record. 2. Schedule the Veteran for a VA examination by a medical doctor to determine the etiology of any currently diagnosed low back disability. The examiner must review the claims file, to include the November 2010, November 2011, June 2019, and September 2020 VA examination reports, and should note that review in the report. In reviewing the record, the examiner should note the service medical records, including the July 1974 service medical record showing treatment for back pain, the service medical examination reports, and the Veteran's reports of his medical history; the post-service treatment records; and the Veteran's lay statements. A complete rationale should be given for all opinions and conclusions expressed. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail. After an examination, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any low back disability diagnosed during the pendency of the appeal is related to service or any incident of service, to include the Veteran's in-service duties as a key punch operator. The examiner must note the Veteran's lay statements regarding back symptoms during and since service in writing the requested opinion. 3. Schedule the Veteran for a VA psychiatric examination by a psychiatrist to determine the nature and etiology of the claimed psychiatric disability. The examiner must review the claims file, including the records regarding the Veteran's colonoscopy, the Veteran's subsequent treatment for internal bleeding resulting from the colonoscopy, and any records of treatment for a psychiatric disability. The examiner must also note the July 2019 VA psychiatric examination report and opinion, to include the diagnosis of other specified trauma and stressor related disorder. After an interview with the Veteran and an examination, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any additional psychiatric disability, to include other specified trauma and stressor related disorder, was caused by VA treatment of colonoscopy? If so, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any psychiatric disability caused by VA treatment was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault; or was an event not reasonably foreseeable. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Layton, 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.