Citation Nr: 21042647 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 18-16 213 DATE: July 13, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for compensation purposes for periodontal disease (claimed as a gum disorder) is denied. Entitlement to service connection for a headache disorder is denied. REFERRED The issue of service connection for a bilateral ankle disability was raised at the February 2020 Board hearing and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had a bilateral hearing loss disability at any time during or approximate to the pendency of the claim. 2. Periodontal disease is not a disability for compensation purposes. 3. The preponderance of the evidence of record is against finding that the Veteran has had a headache disorder at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for periodontal disease (claimed as a gum disorder), for compensation purposes, have not been met. 38 U.S.C. §§ 1110, 1131, 1712, 5107; 38 C.F.R. §§ 3.303, 3.381, 4.150. 3. The criteria for service connection for a headache disorder, including migraine headaches, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 2008 to November 2015. This case comes to the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) AOJ decision dated in June 2016. The Veteran testified before the undersigned Veterans Law Judge at a February 2020 hearing; a transcript of the hearing is of record. Although the Veteran provided testimony regarding service connection for bilateral ankle and foot disabilities at the Board hearing, upon further review of the record, these issues are not in appellate status. The Veteran has not yet submitted a claim for service connection for a bilateral foot disability, and did not appeal the June 2016 denial of service connection for bilateral ankle disabilities. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 1. Service connection for bilateral hearing loss The Veteran contends that he has current bilateral hearing loss due to noise exposure in service, including noise from engines, power tools, weapons training, and helicopters and harriers on the flight deck. See May 2016 VA examination. The question for the Board is whether the Veteran has a current bilateral hearing loss disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385; see also McKinney v. McDonald, 28 Vet. App. 15 (2016) (holding that a minimum degree of hearing loss is a prerequisite for entitlement to service connection, and that a change in hearing as a result of service is a disability if it exceeds the levels specified in 38 C.F.R. § 3.385). Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting regulatory requirements for hearing loss disability for VA compensation purposes (i.e., under 38 C.F.R. § 3.385), and a medically sound basis upon which to attribute the post-service findings to the injury in service, as opposed to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155 (1993). To establish entitlement to service connection, it is not required that a hearing loss disability by these standards of 38 C.F.R. § 3.385 be demonstrated during service, including at time of separation, although a hearing loss disability by these standards must be currently present, and service connection is possible if this current hearing loss disability can be adequately linked to service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993) (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)). Sensorineural hearing loss is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the evidence does not reflect that the Veteran has been diagnosed with sensorineural hearing loss, and the results of the Veteran's May 2016 VA audiological examination show that he does not currently have sufficient hearing loss in either ear to be considered a disability according to the requirements of 38 C.F.R. § 3.385. The VA examiner indicated that the Veteran had normal hearing in both ears. At the February 2020 Board hearing, the Veteran testified that his hearing was about the same since the May 2016 VA examination. The Veteran's service treatment records reflect noise exposure. A hearing loss disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. At entry into service, on audiological evaluation in September 2008, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 0 5 5 LEFT 5 5 5 10 15 During service, on audiological evaluation in July 2015, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 -5 0 5 10 LEFT 0 0 10 15 20 The July 2015 examiner indicated that there was no significant threshold shift when comparing these findings with those shown on examination in September 2008. On the authorized VA audiological evaluation in May 2016, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 5 5 5 LEFT 15 10 10 10 10 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 100 percent in the left ear. The VA examiner reviewed the service treatment records and opined that there was no permanent positive threshold shift (worse than reference threshold) in service greater than normal measurement variability at any frequency between 500 and 6000 HZ for either ear during service. There is no competent evidence of a current hearing loss disability in either ear under 38 C.F.R. § 3.385. The Board concludes that the Veteran does not have a current hearing loss disability 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). While the Veteran is competent to report having experienced symptoms of hearing loss since service, he is not competent to provide a diagnosis in this case or determine that he has a current hearing loss disability under 38 C.F.R. § 3.385, as he has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board gives more probative weight to the competent medical evidence. 2. Service connection for a gum disorder for compensation purposes The Veteran contends that his receding and painful gums were incurred in service. See his March 2016 claim, June 2017 notice of disagreement. 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. 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 in 38 C.F.R. § 17.161. 38 C.F.R. § 3.381(b). The Board notes that because the AOJ has not adjudicated the claim of service connection for periodontal disease for treatment purposes under 38 C.F.R. § 17.161, that issue is not in appellate status. After reviewing all the evidence, the Board finds that the weight of the evidence is against the claim. While the Veteran's service treatment records reflect findings of generalized gingivitis on dental examinations during service (including on entrance examination in September 2008), and receding gums in January 2015, and gum inflammation was noted on VA outpatient treatment in March 2016, there is no legal entitlement to compensation benefits predicated upon service connection for periodontal disease. Periodontal disease is not a compensable disability. 38 C.F.R. § 3.381(b). Accordingly, as the Veteran has not presented a service connection claim for which compensation may be granted, the claim for service connection for periodontal disease (claimed as a gum disorder) for compensation purposes must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). 3. Service connection for a headache disorder The Veteran contends that he has chronic severe headaches or migraines that began in service. He has submitted a patient headache log which he completed, showing that he had daily headaches from April to May 2016, and lay statements from friends and family to the effect that he complained of severe headaches in service and afterward. Organic diseases of the nervous system such as migraines are enumerated conditions under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the evidence does not reflect that the Veteran has been diagnosed with migraines or a chronic headache disorder. A headache disorder was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Service treatment records are entirely negative for complaints, treatment or diagnosis of headaches, including on separation physical examination in July 2015. A neurological examination at that time was negative. Post-service VA medical records are negative for complaints or treatment of headaches. In an initial VA primary care note dated in March 2016, although the Veteran complained of other medical problems, he did not report headaches. At the May 2016 VA headache examination, the examiner opined that the Veteran did not have a current diagnosis of a headache syndrome. The rationale was that there was insufficient evidence to warrant or confirm a diagnosis of a headache syndrome. The Veteran reported that his headaches started after he separated from service, and they usually occurred when he did not get enough sleep. The examiner stated that the Veteran did not seek medical attention for this complaint during service, and the service treatment records are not suggestive of a headache syndrome. The Board concludes that the Veteran does not have a current diagnosis of migraines or a headache disorder 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). While the Veteran is competent to report experiencing symptoms of headaches since service, the Board finds the reports of continuity of symptomatology not credible. The Veteran's reports are internally inconsistent with his reports in contemporaneous treatment records, which show that he denied experiencing headaches in service. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Service treatment records show that in reports of medical history dated in May 2009 and December 2014, the Veteran denied a history of frequent or severe headache. While the Veteran and his family members believe that he has migraine headaches or severe headaches that are related to an in-service injury, event, or disease, they are not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. A December 2017 VA examination reflects that the Veteran was functioning quite well, was a full-time student, was expected to earn his associate's degree that month, and was applying to universities to earn a bachelor's degree in engineering. Without evidence of a current disability or evidence of symptoms that result in functional impairment of earning capacity, service connection is not warranted, and the claim must be denied. See Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim for service connection for a headache disorder, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND 4. Service connection for a left knee disability is remanded. Evidence indicates that there may be outstanding relevant VA treatment records. A March 2016 VA outpatient treatment record reflects that a left knee X-ray study was ordered. This X-ray study is not on file and must be obtained. During the February 2020 Board hearing, the Veteran reported that he has been treated at a VA Medical Center since 2016 and has continued to receive VA treatment for the left knee disability. He testified that a VA X-ray study of the left knee was performed in 2016 and showed minimal lateral femorotibial compartment joint space narrowing. See hearing transcript, page 5. He also stated that he had been diagnosed with arthritis of the left knee. Any VA treatment records are within VA's constructive possession, and are considered potentially relevant to the issue on appeal. A remand is required to allow VA to obtain them. The Veteran underwent a May 2016 VA examination of the left knee, and a VA medical opinion was obtained in November 2017. The May 2016 VA examiner diagnosed left knee strain but did not provide a medical opinion regarding whether this condition is related to service. The November 2017 VA examiner provided a negative medical opinion. The Board finds that the November 2017 VA medical opinion is inadequate because the examiner based the opinion solely on the absence of treatment for a left knee disability in service. Remand is required to obtain a supplemental VA medical opinion. The Veteran has provided lay statements and testimony to the effect that he injured his left knee in 2010 or 2011 during service in Okinawa, and had knee pain ever since, but did not seek treatment for this injury in service because he did not want to complain or miss work. 5. Service connection for an acquired psychiatric disorder, to include anxiety, is remanded. The Veteran underwent a December 2017 VA mental disorders examination, and the VA examiner found no current diagnosis of a psychiatric disorder, and provided a negative medical opinion. The examiner stated that the Veteran reported past mild to moderate anxiety, depressed mood, and anger around the time of his discharge which he stated had dissipated over the last year, but did not report any current mental health symptoms or relationship problems. The Board finds that the December 2017 VA medical opinion is inadequate because the examiner did not provide an opinion as to whether the Veteran had a psychiatric disorder at any point during the pendency of the appeal, and if so, whether it is related to service. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the current disability requirement is satisfied when a disability is shown during the course of a claim, even if it subsequently resolves while the claim is still pending). The Veteran has provided lay statements and testimony to the effect that he had anxiety symptoms during service and afterward but did not seek treatment for this condition because he did not want to complain or miss work. His mother testified that she noticed that his personality changed during service. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from March 2016 to the present, including any X-ray studies of the left knee. 2. After the updated VA treatment records are associated with the file, obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's current left knee disability is at least as likely as not related to service, including the Veteran's report of a left knee injury in 2010 or 2011. The examiner must review the claims file, including the February 2020 Board hearing transcript. An examination need only be performed if deemed necessary by the examiner. Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? If arthritis is diagnosed, is it at least as likely as not that left knee arthritis (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? 3. After the updated VA treatment records are associated with the file, obtain an addendum opinion from an appropriate clinician regarding whether the Veteran had a psychiatric disorder at any point during the pendency of the appeal, and if so, whether it is at least as likely as not related to service. The examiner must review the claims file, including the February 2020 Board hearing transcript. An examination need only be performed if deemed necessary by the examiner. Provide a rationale to support the opinion(s). (Continued on the next page) In providing the requested opinion, consider the Veteran's description of his in-service symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. L. Wasser, 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.