Citation Nr: 22018405 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 18-50 309 DATE: March 29, 2022 ORDER Entitlement to service connection for a right-hand disability is granted. Entitlement to service connection for a left-hand disability is denied. Entitlement to service connection for residuals of dental trauma is denied. REMANDED Entitlement to service connection for a right ankle disability is remanded. FINDINGS OF FACT 1. The osteoarthritis in the Veteran's right-hand as likely as not is a residual of his right finger injury during his service. 2. But his left-hand disability conversely was not caused and is not aggravated by his service-connected right-hand disability, did not onset within one year of his separation from service, and is not otherwise related or attributable to his service. 3. The most persuasive evidence of record is against finding that he has a dental condition involving loss of substance of the body of the maxilla or mandible, or of the surrounding soft tissue, or owing to blunt force trauma during his service. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in his favor, the criteria are met for entitlement to service connection for a right-hand disability. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. However, the criteria conversely are not met for entitlement to service connection for a left-hand disability either as directly or presumptively incurred in service or as secondary to the right-hand disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria also are not met for entitlement to service connection for a dental condition including as a residual of trauma. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.381, 4.150. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1965 to January 1969. This appeal to this Board of Veterans' Appeals (Board) is from a July 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). The Veteran testified in support of these claims during a "virtual" teleconference hearing in January 2021 before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. In July 2021, the Board denied another claim the Veteran also had appealed for service connection for a left knee disability. However, the Board instead remanded these remaining claims back to the RO (AOJ) for further development and consideration including to have him examined for medical nexus opinions concerning the origins of these claimed disabilities referable to his hands, right ankle, and teeth, particularly in relation to his military service. Those remand instructions since have been completed, as directed, at least as concerning the claims for the right- and left-hand disabilities and for residuals of dental trauma. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Unfortunately, though, the right ankle claim again must be remanded. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or a disease, and (3) a nexus, or link, between the current disability and the disease or injury in service. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 1. Entitlement to service connection for a right-hand disability The Veteran contends that his current right-hand disability is the result of an injury he sustained during his military service more specifically, the same injury when he fractured the distal phalanx of his third finger on this same hand with consequent osteoarthritis that already has been determined service connected. After considering the relevant medical and lay evidence, the Board agrees there is indeed this correlation (or it certainly is as likely as not true), so this claim is being granted. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). The report of the Veteran's September 2021 VA examination that he had on remand confirms he has osteoarthritis in his right hand. But, as importantly, this VA examiner also indicated this right-hand osteoarthritis is the result of the right finger fracture the Veteran sustained during his service (but separate and distinct from his already determined to be service-connected right third finger disability owing to that same injury). This examiner explained that it normally takes 10 to 20 years for osteoarthritis to develop in the affected joint. He therefore surmised that it is at least as likely as not the Veteran's right-hand osteoarthritis is due to his right finger fracture during his service. Thus, service connection for this right-hand osteoarthritis is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for a left-hand disability The Veteran asserts that his left-hand disability is either directly related to his service or secondary to his now service-connected right-hand disability. Aside from the statute and regulation already cited governing direct service connection, it also is permissible on a secondary basis for disability that is caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). As well, certain diseases, including arthritis, may be presumed to have been incurred in service if they manifested to a compensable degree (generally meaning to at least 10-percent disabling) within a year after the Veteran's separation from service, although this presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). During his January 2021 hearing before this Board, the Veteran testified that he believes his left-hand disability is the result of overcompensating for his now service-connected right-hand disability so this claim is rooted in the notion of secondary service connection. He further testified that his left-hand disability had onset about 10 years prior to the hearing, so in 2011 or thereabouts. Even if true, that was some 42 years after his separation from service, so the osteoarthritis that also is in this other hand admittedly did not onset during his service or even within the permissible one-year grace period following his separation from service, instead, not until much more recently. After the September 2021 VA hand examination, on remand, the examiner confirmed the diagnosis of left-hand osteoarthritis but concluded it did not onset during or within one year of the Veteran's separation from service. Concerning these notions of direct and presumptive service connection, this examiner determined that it is less likely than not the osteoarthritis in this hand is directly due to the Veteran's service or that it initially manifested within a year of his discharge from service. The rationale was that it was not diagnosed until in 2008 or thereabouts, so not until over 40 years after the Veteran's separation from service, and there was no notation in his service treatment records (STRs) indicating an earlier onset of this disease during his service or evidence showing it within the one-year grace period immediately following conclusion of his service. Resultantly, service connection on a direct or presumptive basis for the osteoarthritis of this hand is not warranted. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Concerning whether the Veteran's left-hand disability alternatively is secondary to his now service-connected right-hand disability again, meaning caused or aggravated by it, the examiner also opined that it is less likely than not this is true. The rationale was that the Veteran's left-hand osteoarthritis appears to be more severe than his right-hand osteoarthritis, meaning the likely etiology of his left-hand osteoarthritis is wear and tear or some other post-service injury. Additionally, the examiner explained that, because the Veteran's left-hand osteoarthritis is worse than his right-hand osteoarthritis, it is likely that his left-hand osteoarthritis onset prior to his right-hand osteoarthritis. This means that his right-hand osteoarthritis could not have caused his left-hand osteoarthritis, as his left-hand was affected first. There equally was no indication or mention of the right-hand osteoarthritis aggravating the left-hand osteoarthritis. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). Since that September 2021 VA examiner found that the Veteran's left-hand osteoarthritis did not onset during or within a year of his separation from service and is not secondary to his right-hand osteoarthritis and not otherwise related or attributable to his service, the persuasive evidence of record is against this claim. Because the Veteran is a layman, he does not have the competence to give a probative opinion concerning the etiology of his left-hand osteoarthritis. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Thus, the VA medical examiner's opinion against this claim is more probative and, in fact, determinative of the ultimate disposition. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). Accordingly, the persuasive evidence of record is against this claim of entitlement to service connection for a left-hand disability (osteoarthritis) on a direct, presumptive, or secondary basis. So, all potential theories of entitlement have been duly considered. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). In denying this claim, the Board considered the doctrine of reasonable doubt, however, since there is not an "approximate" (nearly equal) balance of evidence for versus against this claim, this doctrine is inapplicable. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). 3. Entitlement to service connection for residuals of dental trauma The Veteran asserts that dental extractions during his service caused long-term dental disability, including the eventual loss of teeth. Dental disabilities are treated differently than medical disabilities in the VA benefits system. Generally, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses and periodontal disease will be considered service-connected solely for the purpose of determining entitlement to dental examinations or outpatient dental treatment under the provisions of 38 C.F.R. Chapter 17. See 38 C.F.R. § 3.381. Service connection for loss of teeth are unique claims as the Veteran must meet the requirements under 38 C.F.R. § 4.150 for compensation purposes. Dental disabilities that may be awarded compensable disability ratings are set forth in 38 C.F.R. § 4.150. These disabilities include chronic osteomyelitis (infection of the bone) or osteoradionecrosis (bone death due to radiation) of the maxilla (upper jaw) or mandible (lower jaw), 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, 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. See 38 C.F.R. § 4.150, Diagnostic Codes (DCs) 9900-9916. Notably in this case, dental treatment, even extractions, during service does not constitute dental trauma. See VAOPGCPREC 5-97; 38 C.F.R. § 3.306(b)(1). Moreover, for the purposes of determining whether a Veteran has treatment eligibility, the term "service trauma" does not include the intended effects of treatment provided during his military service. The regulations are intended to cover dental trauma involving external, sudden-force injury, such as a combat wound to the teeth and jaw. See VAOPGCPREC 5-97 (1997); Nielson v. Shinseki, 607 F.3d. 802 (Fed. Cir. 2010). A claim for service connection is also considered a claim for VA outpatient dental treatment. See Mays v. Brown, 5 Vet. App. 302 (1993). Service connection for purposes of outpatient dental treatment may be granted for a dental condition of any tooth and/or and periodontal tissue shown by the evidence to have been incurred in or aggravated by service, so long as the Veteran falls under one of a number of specific classifications. See 38 C.F.R. § 3.381(a). The portion of VA's Schedule for Rating Disabilities addressing dental and oral conditions was revised effective September 10, 2017. The new regulations involve benign or malignant neoplasms that are not applicable to this Veteran's claim and the other changes involved only clarification of the rating terms. The Veteran asserts that, during his service, he had two molars extracted, which were not replaced. He claims this eventually caused the adjacent teeth to migrate and tip inward towards the extraction space, causing them to "bite" in an abnormal fashion, causing damage over time and eventual extraction. The Veteran's STRs do not show any trauma to his mouth or jaw area and show only routine dental care, including the extraction of the two molars mentioned. In December 2021, the Veteran underwent a VA dental examination on remand of this claim. The examiner confirmed that the Veteran's only current diagnosis pertaining to his teeth is periodontal disease. The examiner further confirmed that most of the teeth affected by the molar extractions in service were removed between 2000 and 2007, so there are no current symptoms related to those extractions since the teeth are "long gone." This examiner did not find that the Veteran had sustained any dental trauma during his service. The Veteran is not claiming entitlement to service connection for impairment of the mandible, loss of a portion of the ramus, loss of a portion of the maxilla, or similar disability manifested by bone loss. His claim is based on routine teeth extractions, which cannot be the basis for service connection for a dental disability. See VAOPGCPREC 5-97; 38 C.F.R. § 3.306(b)(1). Moreover, upon review of the treatment records, there is no indication his claimed dental disorder involves symptoms consistent with loss of the substance of the body of the mandible or bone loss in the maxilla or mandible region. The record on appeal also does not contain any lay statements indicating he has loss of substance of the body of the mandible or bone loss in the maxilla or mandible region, only that he has lost teeth. Thus, his claim for service connection must be denied as a matter of law. In cases, as here, where the law and not the evidence is dispositive, the claim should be denied because of lack of legal merit or lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). Resultantly, this claim for service connection for a dental disorder for compensation or care is denied. REASONS FOR REMAND 4. Entitlement to service connection for a right ankle disability is remanded. The Veteran contends that his right ankle disability is the result of an undocumented fall during his service, which he said caused a fracture that was not discovered until in 1975, some six years after his separation from service. During his January 2021 hearing before this Board, the Veteran testified that he fell in a hole during his service and twisted this ankle, which he believes resulted in a fracture, but he admittedly did not seek any medical care at the time. The Veteran had a VA ankle examination in September 2021 pursuant to the Board's prior remand directive. But, while the examiner provided the opinions requested, they are inadequate, so the Board must correct this failing. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that, when VA endeavors to provide an examination for an opinion, it must ensure the examination and opinion are adequate). The September 2021 VA examiner did not as directed address the Veteran's STRs showing complaints of right ankle swelling or his testimony during his hearing that he had an undocumented injury during his service. Further, although this examiner cited a July 1975 private treatment record showing the Veteran had hurt his right ankle in 1975 (so had sustained an intervening ("intercurrent") injury since his claimed injury in service), the examiner did not discuss or otherwise reconcile the fact that imaging documented on that same record additionally indicated the Veteran may have sustained an "old" (so prior) right ankle fracture. The Board consequently is obtaining more medical comment before deciding the appeal of this claim. Accordingly, this claim is REMANDED for the following action: Obtain an addendum opinion (as a supplement to the opinion already obtained in September 2021) regarding whether the Veteran's current right ankle disability is at least as likely as not related or attributable to an undocumented fall during his service, as opposed to any additional ("intercurrent") injury he has sustained to this ankle since his service, including in 1975. *To this end, the examiner must specifically address the STRs showing complaints of right ankle swelling and the July 1975 private treatment record referencing an "old" fracture of the Veteran's right ankle in terms of whether this could be referencing an injury during his service rather than just to the injury noted in 1975. Rationale for the opinion therefore is essential, regardless of whether favorable or conversely unfavorable to this claim, preferably citing to findings or other evidence in the file supporting conclusions and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Pak 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.