Citation Nr: 21040908 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 17-65 728 DATE: July 7, 2021 ORDER Entitlement to service connection for hypoglycemia is dismissed. Entitlement to service connection for a dental condition, for compensation purposes, is denied. Entitlement to service connection for a respiratory condition, claimed as breathing problems, to include as due to asbestos exposure, is denied. REMANDED Entitlement to service connection for a skin condition is remanded. Entitlement to service connection for mouth lesion is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for left knee disability is remanded. Entitlement to service connection for right hand middle finger disability is remanded. Entitlement to service connection for a right hand ring finger disability is remanded. Entitlement to service connection for a right hand pinky finger disability is remanded. FINDINGS OF FACT 1. In an April 8, 2021 Board hearing, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that withdrawal of the claim for service connection for hypoglycemia was requested. 2. The Veteran's dental disability is not due to loss of substance of body of maxilla or mandible from trauma or disease such as osteomyelitis. 3. The evidence of record does not establish that the Veteran has a current respiratory condition or has had a respiratory condition at any time during the pendency of the claim or recent to the filing of the claim. CONCLUSIONS OF LAW 1. The criteria for withdrawal of service connection for hypoglycemia by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for service connection for dental condition, for compensation purposes, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.381, 4.150. 3. The criteria for service connection for a respiratory condition, to include as due to asbestos exposure, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States Army from October 2000 to March 2001, and from October 2004 to December 2005. In April 2021, the Veteran testified before the undersigned Veterans Law Judge at a Virtual hearing. A copy of the transcript has been associated with the claims file. The issue of service connection for a dental condition is being decided only for compensation purposes, not for dental treatment. The Board notes that in the March 2014 rating decision on appeal, the Regional Office (RO) only made a decision regarding dental disability for compensation purposes and not a decision regarding dental condition. There is further no documentation showing the RO completed referral of the claim to the VA medical center, as is required under 38 C.F.R. § 3.381(a). As such, a claim for a dental disability for purposes of VA outpatient treatment is referred to the AOJ for appropriate action, to specifically include referral of the claim for dental treatment to the appropriate VA Medical Center if this has not already been accomplished. See 38 C.F.R. § 3.381(a). Withdrawal 1. Service connection for hypoglycemia During the April 2021 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew the issue of service connection for hypoglycemia. The undersigned clearly identified the withdrawn issue, and the Veteran affirmed that he was requesting a withdrawal as to that appeal. See Hearing Transcript at 16. The appellant's full understanding of the consequences is shown based on the fact that prior to the hearing, the consequences of withdrawal of this claim were fully discussed by the undersigned and the appellant's representative. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018), adopting the rule of DeLisio v. Shinseki, 25 Vet. App. 45, 57-58 (2011). Service Connection 2. Service connection for a dental condition The Veteran contends that his dental condition, to include loss of teeth and incomplete dental work, is due to his period of service. Disability compensation is only available for certain types of dental and oral conditions, 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; see Simington v. West, 11 Vet. App. 41, 44 (1998). Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not compensable disabilities. 38 C.F.R. § 17.161; 38 C.F.R. § 3.381. The Board notes that the Veteran's service treatment records do not indicate injury to his mouth or teeth. The service records note diagnoses of root canal, cavities, and teeth removal. However, there were no mentions of any anatomical loss or bony injury of the mandible nor was there a mentioning of any anatomical loss or bony injury of the maxilla, or loss of a portion of the ramus. The Veteran has further never been diagnosed with a disease such as osteomyelitis. At an April 2021 Board hearing, the Veteran reported that he was denied dental treatment during service after his return from deployment and told he would receive treatment following separation. After review of the record, the Board finds that the evidence weighs against service connection for a dental condition. The Board acknowledges the Veteran's complaint of incomplete dental work due to separation from service. However, there are no records showing anatomical loss to his mandible, maxilla, or ramus at any time during or prior to the pendency of his claim. Therefore, the Veteran does not have a current dental disability that qualifies for service connection for compensation purposes, and the claim is denied. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). 3. Service connection for a respiratory condition, claimed as breathing problems, to include as due to asbestos exposure The Veteran contends that he has a respiratory condition that is due to his period of service, to include as due to exposure to asbestos. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a respiratory condition and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Review of the Veteran's medical records indicate normal respiratory function. The Veteran's medical records also show no complaint of respiratory symptoms such as shortness of breath, coughing, wheezing, or hemoptysis. An August 2015 VA medical record shows complaint of breathing problems in relation to the Veteran's sleep. At an April 2021 Board hearing, the Veteran reported that he began having sleeping issues after an in-service accident. The Veteran stated that he would wake up in panic and anxiety and could not breathe. The evidence indicates that the Veteran does not have a diagnosis of a respiratory condition. To the extent that the Veteran claims symptoms of breathing problems due to his sleep apnea, this symptom falls under the claim for service connection for sleep apnea, which has been addressed separately. As such, service connection for a respiratory condition is not warranted. REASONS FOR REMAND 1. Service connection for a skin condition is remanded. The Veteran contends that his skin condition is due to his period of service. In a March 2014 VA examination, the examiner stated that it is less likely than not that the Veteran's skin condition is due to his period of service. The examiner noted that the service treatment records show a note on November 25, 2005 of concern with skin cancer/moles, which was signed by the physician. The examiner stated that the record only shows this note and no follow up on diagnosis, to include a diagnosis of dermatofibromas and the cited "moles/skin cancer" were not clarified as affecting the right arm or left leg. The examiner stated that the Veteran was diagnosed with a skin condition of the right arm and left leg. The examiner went on to state that the 2013 dermatology note does cite the Veteran reporting a multiple lesions concern during service as right arm growth and left leg after being exposed to shower water. The examiner noted that the Veteran reported that other members of his group developed similar lesions. The examiner stated that dermatofibromas are idiopathic benign skin lesions that can occur from a minor injury or insect bite or prickling thorn, conceivably in dry desert. The examiner stated that the Veteran could have had insect bites, but this would merely be speculative on the examiner's part, as no bug or insect bites were reported or discussed at the time of the 2013 dermatology diagnosis. The examiner reasoned, therefore, that even if the skin lesions were present at the time of service as reported by the Veteran, these could very well be benign idiopathic in nature, (idiopathic is an adjective used primarily in medicine meaning a disease or condition the cause of which is not known or that arises spontaneously) and not related to military service. Thus, the examiner concluded that the current diagnosis of dermatofibromas of right arm and left leg are not at least as likely as not related to or due to or the result of the Veteran's skin condition in service. In an April 2017 VA examination, the examiner was asked to provide a medical statement as to whether the Veteran's disability pattern is: (1) an undiagnosed illness (2) a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology (3) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (4) a disease with a clear and specific etiology and diagnosis. The examiner stated the Veteran's diagnosed multiple dermatofibromas are less likely than not due to or a result of service because service treatment records do not show diagnosis or treatment for dermatofibromas. The examiner noted that there was a form dated November 25, 2005 that the Veteran completed which stated that he had some concerns about his skin. The examiner stated that there is no objective evidence of continuity of care from active duty, and the separation examinations do not record any skin conditions. The Board notes that neither the March 2014 nor the April 2017 VA opinions provide a medical statement explaining the Veteran's disability pattern in regard to his Southwest Asia service. Moreover, while the service treatment records do not show a formal diagnosis of the Veteran's current skin condition, the Veteran's November 2005 post-deployment examination with the Veteran's report of skin concerns qualifies as an in-service occurrence. A remand is necessary to properly consider 38 C.F.R. § 3.317 and the Veteran's lay statements. 2. Service connection for mouth lesion is remanded. The Veteran contends that he has a mouth lesion that is due to his period of service. In a March 2014 VA examination, the examiner stated that it is less likely than not that the Veteran's mouth lesions are due to or the result of the Veteran's skin condition in service. The examiner stated that the Veteran has a remote smoking history. The examiner also noted that the service treatment records show no mouth lesions reported in the military and no diagnosis of mouth lesions. The examiner stated that the Veteran reported to a VA dermatologist in 2013, stating that he developed a white bump in his mouth, and was told by an outside doctor that it could be pre-cancerous and should be removed. The examiner stated that the history of this is not clear as there is only one other note that he was seen one year prior to the 2013 note. The examiner went on to state that there is no documentation of mouth lesion history during the Veteran's service, and only the Veteran's report of this history indicates development during service. The Board notes that the Veteran's service treatment records document an October 2004 record in which the dental examiner noted that the Veteran has curious lesions. As the March 2014 VA examination did not consider this record, a remain is necessary. 3. Service connection for sleep apnea is remanded. The Veteran contends that his sleep apnea is due to his period of active duty service. In an April 2017 VA examination, the examiner opined that it is less likely than not that the Veteran's sleep apnea is due to or related to a specific exposure event experienced by the Veteran during service in Southwest Asia. The examiner stated that service treatment records are silent for any diagnosis or treatment for obstructive sleep apnea. The examiner also stated that there is no continuity of care immediately after return from active duty, and the diagnosis was made many years later. The Board notes that at an April 2021 Board hearing, the Veteran asserted that his sleep apnea was secondary to his service-connected PTSD. The Veteran also submitted a general treatise regarding the relationship between PTSD and sleep apnea. A remand is necessary to consider the Veteran's claim on a secondary basis. 4. Service connection for a right knee disability is remanded. 5. Service connection for left knee disability is remanded. The Veteran contends that his right and left knee disabilities are due to his period of service. In a March 2014 VA examination, the examiner opined that it was less likely than not that the Veteran's knee disabilities were due to his period of active duty service. The examiner stated that the Veteran was not seen for knee disability during service. The examiner noted that the Veteran reported a history of bilateral history pain with physical training, but he worked through the pain rather than be seen by a doctor. The examiner stated that the symptoms were not medically reported or seen in the military and no flare-ups during the current examination. Therefore, the examiner concluded that the Veteran's current knee disabilities are not related to his period of service. The Board notes that a March 2005 service treatment record indicates report of current concerns for knees. As the March 2014 VA opinion did not consider this in-service complaint, a remand is necessary. 6. Service connection for a right hand middle finger disability is remanded. 7. Service connection for a right hand ring finger disability is remanded. 8. Service connection for a right hand pinky finger disability is remanded. The Veteran contends that his right middle finger, ring finger, and pinky finger disabilities are due to his period of service. In a March 2014 VA examination, the examiner found that the Veteran did not have a diagnosis of a right hand or finger condition. The examiner did not find any functional loss or impairment of the fingers and the examiner did not report any tenderness or pain to palpation for joints or soft tissue of the right hand, including thumb and fingers. The examiner stated that the Veteran's hand, thumb, or finger conditions do not impact his ability to work. In an April 2017 VA examination, the Veteran stated that his right hand was painful with heavier use, like after using a screwdriver. He reported pain along the right ulnar side of the hand from the metacarpophalangeal joint to the wrist with no finger or wrist involvement. He indicated that it snapped when he opened and closed the hand. He reported that if the hand was fatigued, it opened more slowly. The Veteran also reported flare-ups during cold or damp weather where his hand became painful after a few minutes of using it. The Veteran reported functional loss or impairment of the joint, including but not limited to, repeated use over time. The examiner stated that the Veteran does not have a current diagnosis associated with a right hand or finger condition. The examiner reported abnormal range of motion of the right hand. The examiner reported that range of motion did not contribute to functional loss, and no pain was noted on examination. The examiner stated that there was no evidence of pain with use of the hand, and there was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The examiner noted that there was no evidence of pain on passive range of motion testing. The examiner noted that, with full fist closure of the right hand, there is an audible snap and palpable shift in some of the tissue of the right hand proximal to the metacarpophalangeal joints of the index, middle, ring and little fingers on the right. The examiner stated that the Veteran's claimed conditions did not cause functional impact. The examiner reiterated that there is no objective evidence of a diagnosis of a right hand or finger condition. The medical evidence of record establishes that there are no formal diagnoses of right middle finger, ring finger, and pinky finger disabilities; however, the evidence is unclear as to whether the Veteran's reported finger pain is such that it causes impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). While the Veteran's March 2014 and April 2017 VA examinations do not appear to show that the Veteran experiences pain that causes any functional limitation or functional impact on ability to work due to his right hand or fingers, the Veteran subsequently testified at an April 2021 Board hearing that his disability manifested in limitation of motion and painful motion. Moreover, the Veteran did report at his April 2017 VA examination that he had pain in his right hand with heavier use and after using it during cold or damp weather. He also indicated that if the hand was fatigued, it opened more slowly. As it is unclear whether the Veteran's lay statements of functional limitation have been taken into consideration in determining whether he has current finger disabilities, a remand is necessary. The matters are REMANDED for the following action: 1. Send the Veteran's file to an appropriate examiner(s) for addendum opinions to determine the nature and etiology of the Veteran's skin condition, mouth lesion, sleep apnea, knee disabilities, and right finger disabilities. An examination may be scheduled only if the examiner(s) deems it necessary. The examiner(s) shall consider all other medical records associated with this file. After examination and review of the record, the examiner(s) is asked to offer an opinion on the following: a. Determine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's skin condition is manifested in, caused by, or is otherwise etiologically related to his active duty service. In making this determination, the examiner should consider the Veteran's in-service report of skin concern to be credible. The examiner should consider and discuss the Veteran's lay statements regarding onset. b. Determine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's mouth lesion is manifested in, caused by, or is otherwise etiologically related to his active duty service. In making this determination, the examiner should consider and discuss the October 2004 service treatment record noting lesion. c. Determine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's sleep apnea is manifested in, caused by, or is otherwise etiologically related to his active duty service or, in the alternative, whether his sleep apnea proximately due to or aggravated by his service-connected PTSD. In making this determination, the examiner should consider and discuss the article submitted by the Veteran in April 2021 regarding PTSD and sleep apnea. d. Determine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's left and right knee disabilities were manifested in, caused by, or is otherwise etiologically related to his period of active duty service. In making this determination, the March 2005 service treatment record should be considered and discussed as an in-service incurrence. e. Determine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's right middle finger, ring finger, and pinky finger disabilities are such that they cause functional impairment of earning capacity. If so, is it at least as likely as not that they were manifested in, caused by, or are otherwise etiologically related to his period of active duty service? In making this determination, the Veteran's reported fall should be considered and discussed as an in-service incurrence. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ford 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.