Citation Nr: 21041830 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 18-27 278 DATE: July 10, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder to include anxiety is denied. Entitlement to service connection for periodontal disease (Pyorrhea) is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. REFERRED Service connection for a dental condition for treatment purposes. FINDINGS OF FACT 1. An acquired psychiatric disorder, to include generalized anxiety disorder, did not have its onset in service, or manifest to a compensable degree within one year of service discharge and is not otherwise related to service. 2. Periodontal disease is not a disability for compensation purposes. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, to include generalized anxiety disorder, are not met. 38U.S.C. §§ 1110, 1131, 5107(b); 38C.F.R.§ 3.303. 2. The criteria for service connection for a dental disorder, claimed as periodontal disease are not met. 38 U.S.C. §§ 1110, 1712, 5107(b); 38 C.F.R. §§ 3.381, 4.150. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1967 to March 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in September 2017 by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Board denied service connection for hearing loss and tinnitus. The anxiety and periodontal disease issues were remanded for additional development. The Veteran appealed the denial of entitlement to service connection for hearing loss and tinnitus to the United States Court of Appeals for Veterans Claims (Court). In November 2020, the Court issued an order that vacated the 2019 Board decision and remanded the issues of service connection for hearing loss and tinnitus for compliance with its Memorandum Decision. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present 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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Continuity of symptomatology may also provide a basis for a grant of service connection for those diseases defined as "chronic" by VA. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). A review of the claims folder indicates that with the exception of his enlistment and separation physicals, the Veteran's service treatment records are not available for review and numerous attempts to obtain complete records were unsuccessful. See VA correspondence dated September 7, 2017. Accordingly, the Board has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). So while it is unfortunate that the Veteran's complete service treatment records are unavailable, this appeal must be decided on the evidence of record and, where possible, the Board's analysis has been undertaken with this heightened obligation set forth in Cuevas and O'Hare in mind. acquired psychiatric disorder (anxiety disorder) The Veteran states that his anxiety condition began during basic training when a hand grenade was tossed in close proximity to his bunker and exploded destroying the bunker. He did not report his anxiety while in the military for fear of being shamed in from of his fellow service members and of not being separated early on a hardship basis to work on his uncle's farm. See Remarks to Statement of the Case, dated March 12, 2020. Review of the available service treatment records and service personnel records show no evidence of a grenade incident in service. At his separation physical in January 1970, the Veteran stated that he was in excellent health and specifically denied a history of depression, excessive worry, nervous trouble, and trouble sleeping. Although the Veteran also claims to have experienced anxiety problems since service, post-service treatment records do not show any pertinent symptoms in the immediate years after separation. The earliest post-service documentation of pertinent symptoms or complaints is in private treatment records from February 2009 which document the Veteran's complaints of anxiety, depression, and feeling confused. In June 2010, he reported feeling anxious for two weeks. Predisposing factors were noted as recent the illness and hospitalization of his wife. The examiner noted a history of anxiety/depression and diagnosed generalized anxiety disorder. See Progress Notes from Silver Health Care and Family Health Care Center. In October 2014, the VA Medical Center diagnosed anxiety not otherwise specified and in February 2017 confirmed the diagnosis of generalized anxiety disorder. These records do not suggest that any pertinent symptomatology originated during military service and there is no other evidence of record to suggest the presence of an anxiety disorder prior to the indicated date of diagnosis. There is also no competent evidence linking the post-service anxiety disorder to the Veteran's military service years earlier. Since service and post-service treatment records provide no basis to grant this claim, and in fact provide evidence against it, the Board finds no basis to obtain a VA examination or medical opinion. Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (holding that VA is not obligated to provide an examination for a medical nexus opinion where, as here, the supporting evidence of record consists only of a lay statement). To this point the Board notes that, the only evidence linking anxiety disorder to service are the Veteran's own conclusory lay assertions, which alone are not sufficient to render a VA examination or opinion necessary and do not trigger VA's duty to obtain a medical opinion to decide the claim. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (a claimant's mere conclusory generalized statement that a service illness caused his present medical problems is not sufficient to entitle him to a medical examination). Although the Veteran asserts that his current anxiety disorder is related to service such an assertion treads into the realm of medical expertise. This is especially true where a particular condition is not readily amenable to mere lay diagnosis or probative comment regarding etiology. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). More importantly, his reports of anxiety during service and continuously since then lacks credibility as the statements are not supported by the record. See Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). In this case, the objective contemporaneous medical records stand in sharp contrast to the Veteran's lay reports and are more probative as to the circumstances surrounding the onset of his anxiety rather than his inconsistent history reported many years later. See Curry v. Brown, 7 Vet. App. 59 (1994) (a Veteran's version of events from the past may be of limited credibility and probative value in the absence of medical records showing treatment for the claimed disorder). As the preponderance of evidence is unfavorable to the claim, there is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b). periodontal disease (pyorrhea) The Veteran seeks service connection for a dental condition. Initially, the Board notes that the Veteran's claim of entitlement to service connection for a dental disorder raises both the issue of service connection for compensation purposes and service connection for treatment purposes. See Mays v. Brown, 5 Vet. App. 302, 306 (1993). However, in dental claims, the RO adjudicates the claim of service connection and the VA Medical Center (VAMC) adjudicates the claim for outpatient treatment. As the current issue of service connection for a dental disorder stems from an adverse determination by the RO, the dental issue addressed herein must be limited to service connection for compensation purposes only. Dental disorders are treated differently than other medical disorders in the VA benefits system. See 38 C.F.R. § 3.381. Compensation is only available for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla. For VA compensation purposes the loss of teeth due to the loss of substance of the body of the maxilla or mandible is a disability, but only if due to bone loss through trauma or disease such as osteomyelitis. See 38 C.F.R. § 4.150, Diagnostic Code (DC) 9900-9916; see also Simington v. West, 11 Vet. App. 41 (1998). The loss of the alveolar process as a result of periodontal disease is not disabling for VA purposes. See 38 C.F.R. § 4.150, DC 9913, Note; see also Byrd v. Nicholson, 19 Vet. App. 388, 394 (2005) (discussing history of 38 C.F.R. §§ 3.381, 4.150). Absent a demonstration of dental trauma, service connection may be considered solely for the purpose of determining entitlement to dental examinations or outpatient dental treatment. See also Woodson v. Brown, 8 Vet. App. 352, 354 (1995). The Board finds that service connection for a dental disability for compensation purposes is not warranted. Available service treatment records show no evidence of a traumatic dental trauma or chronic or systemic disease resulting in tooth loss of active duty. The Veteran's January 1967 dental chart at pre-induction shows he was not missing any teeth and his dental condition was described as "acceptable." At separation in January 7, 1970, he was considered dentally qualified for separation from service, and denied severe tooth or gum trouble. Although the accompanying dental chart reflects missing wisdom teeth #1, and #16 and that tooth #32 was restorable, the Veteran has not claimed service connection for these teeth and there is no indication that wisdom teeth were extracted due to a dental condition resulting from in-service trauma. Based on the relevant medical and other evidence, the Board finds that the Veteran does not have a compensable dental disorder. There is no evidence that he has a current dental disability that is due to loss of substance of body of maxilla or mandible through trauma or osteomyelitis. Rather, the Veteran's claim is specific for periodontal disease. Moreover, while he was advised of the evidence needed to substantiate his claim, he provided no post-service VA or private dental treatment records, or the names of dentists who treated him. There is no legal entitlement to compensation benefits predicated upon service connection for periodontal disease. Where the law and not the evidence is dispositive, the claim should be denied because of the lack of legal merit or the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Service connection for periodontal disease is denied. REASONS FOR REMAND bilateral hearing loss tinnitus The Veteran is seeking service connection for bilateral hearing loss and tinnitus that he contends had their onset during service as a result of exposure to excessive noise. The Veteran's DD-214 shows he served as a personnel specialist, a military occupational specialty (MOS) not typically associated with routine exposure to hazardous noise levels. However, the Board has also considered his assertion that he was exposed to noise while firing the M-14 rifle and throwing hand grenades in basic training and was a sharpshooter. He further stated that he had an event in basic training where he experienced a hand grenade being thrown and exploded near a bunker area, causing loss of hearing. Thus, it is plausible that he had some acoustic trauma in service. 38 U.S.C. § 1154(a). The Veteran was afforded a VA examination in September 2017 to determination the nature and etiology of his bilateral hearing loss and tinnitus. At that time, the examiner opined that the Veteran's bilateral hearing loss and tinnitus were less likely than not caused by or result of an event in military service. As rationale, the examiner explained that the Veteran had normal hearing at entrance and separation from the military, and there were no permanent shifts. The examiner noted the Veteran's reports of an onset of decreased hearing and tinnitus 20 to 30 years ago. The examiner also noted that the Veteran denied hearing loss in his December 2015 and September 2016 treatment records. In the November 2020 Memorandum Decision, the Court indicated that the Board provided an inadequate explanation for its reliance on the September 2017 VA examination report. The Court noted that in finding there were "no significant permanent shifts" in the Veteran's hearing, the audiologist failed to define what a "significant permanent shift" would entail or why a shift in hearing had to be significant for the examiner to provide a positive opinion. This conclusion is prejudicial to the Veteran because it is unclear what the examiner meant. The Veteran's tinnitus claim is inextricably intertwined with his claim for bilateral hearing loss. Based on the foregoing, and consistent with the Court's November 2020 Order, the Board finds that these matters should be remanded to obtain the additional medical evidence necessary to adequately address the claims. The matters are REMANDED for the following action: Return the file to the clinician who provided the September 2017 VA opinion, if available, for an addendum. Otherwise, provide the record to another clinician who will have an opportunity to review the complete file and provide the requested opinion. The need for an additional examination is left to the discretion of the medical professional offering the opinion. Following review of the entire record, the clinician should provide an opinion as to whether it is at least as likely as not, (i.e., a 50 percent probability or greater), that the Veteran's hearing loss and tinnitus are related to in-service noise exposure. In answering this question, the VA clinician should specifically discuss: 1) the January 1967 entrance audiogram and the January 1970 separation audiogram and 2) the rationale from the September 2017 VA examination report. If the clinician agrees or disagrees with the VA opinions, he/she should explain their reasoning for doing so. If the clinician determines that there were no significant threshold shifts or changes in the Veteran's hearing acuity during service, he or she should explain how a significant threshold shift or change is defined, and why this finding is relevant to the opinion. The opinion should be accompanied by a clear rationale consistent with the evidence of record. The clinician must explain the underlying rationale for all opinions expressed, citing to supporting factual data/medical literature. If the clinician is unable to provide an opinion without resorting to speculation, he or she should explain whether the inability is due to the limits of the clinician's medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bryant, Jeana R 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.