Citation Nr: 22019977 Decision Date: 04/03/22 Archive Date: 04/03/22 DOCKET NO. 19-15 609 DATE: April 3, 2022 ORDER Entitlement to service connection for rhinitis, to include as secondary to service-connected residuals of fractured mandible and maxilla, is denied. Entitlement to service connection for loss of teeth, to include as secondary to service-connected residuals of fractured mandible and maxilla, is denied. Entitlement to service connection for a neck disability is denied. Entitlement to an initial compensable rating for traumatic brain injury (TBI) from June 7, 2016, to November 1, 2017, is denied. REMANDED Entitlement to service connection for sinusitis, to include as secondary to service-connected residuals of fractured mandible and maxilla, is remanded. Entitlement to service connection for headaches, to include as secondary to service-connected residuals of fractured mandible and maxilla, is remanded. FINDINGS OF FACT 1. The medical evidence does not show the Veteran has had rhinitis at any time during or approximate to the pendency of the claim. 2. The Veteran's loss of teeth is not due to loss of substance of body of maxilla or mandible. 3. The medical evidence does not show or suggest a neck disability began during active service, or is otherwise related to service, or that arthritis of the neck was manifested to a compensable degree within one year of service separation. 4. During the pendency of the appeal, service connection for TBI was severed, effective November 1, 2017. CONCLUSIONS OF LAW 1. The criteria for service connection for a rhinitis have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for loss of teeth 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 neck disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for an initial compensable rating for TBI from June 7, 2016, to November 1, 2017, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.400(o)(1). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1953 to September 1955. He testified at a virtual Board hearing before the undersigned in July 2021. The record was held open for 60 days after the hearing for the submission of additional evidence. No such evidence has been received. 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. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, such as arthritis, are subject to presumptive service connection if they 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 1. Rhinitis The Veteran has generally asserted that he has rhinitis related to trauma to his face in service. He described sneezing and a runny nose that were not present in childhood. See July 2021 hearing transcript. The Veteran's service treatment records (STRs) are silent for any complaints or findings related to rhinitis. A September 1955 separation report of examination notes no findings of rhinitis. Clinical evaluation of the nose was normal. Likewise, the Veteran's post-service treatment records are also silent for any findings of rhinitis. Notably, the Veteran underwent a VA examination in August 2016. The examiner reviewed the claims file, and noted the Veteran's complaints of periodic sinus congestion, pressure, and drainage, However, the examination revealed no rhinitis. After reviewing the foregoing evidence, the Board concludes the Veteran does not have current rhinitis, and has not had this disability during the pendency of the claim or recent to the filing of the claim. As noted above, separation examination and the 2016 VA examination showed no rhinitis. There is no medical evidence ot the contrary. Lacking current disability, the cornerstone element of service connection has not been met, and service connection is not warranted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Consideration has been given to the Veteran's own statements that he has rhinitis. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the disability falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). That is, although the Board readily acknowledges that Veteran is competent to report symptoms of nasal congestion, there is no indication that the Veteran possesses the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, this lay evidence does not constitute competent or credible evidence and lacks probative value. Thus, the Board concludes that the weight of the competent and credible evidence establishes that the Veteran has not been shown to have rhinitis at any time during the pendency of the claim or recent to the filing of the June 2016 claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As the Veteran does not have a diagnosis of rhinitis, there is no current disability and the first element of service connection has not been met. See Brammer v. Derwinski, supra. Therefore, service connection must be denied. In reaching this decision the Board concludes that, as the evidence persuasively favors against service connection for rhinitis, it is not in approximate balance, and the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 2. Loss of Teeth A claim for service connection for a dental condition is also a claim for VA outpatient dental treatment. Mays v. Brown, 5 Vet. App. 302, 306 (1993). An April 2019 Statement of the Case informed the Veteran he may qualify for service connection for "treatment purposes only" if he applies for this benefit through the Veterans Health Administration (VHA). That matter is not before the Board at this time. Dental disorders are treated differently than other medical disorders in the VA benefits system. See 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 17.161. As provided by VA regulations, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses and periodontal disease are not considered disabling conditions and may be considered service connected solely for establishing eligibility for VA outpatient dental treatment. See 38 C.F.R. § 3.381(a). Missing teeth may be compensable for rating purposes under 38 C.F.R. § 4.150, Diagnostic Code 9913. However, 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, loss of a portion of the maxilla, or loss of teeth due to loss of substance of body of maxilla or mandible without loss of continuity. However, the note underlying that particular diagnostic code provides for compensation only for "bone loss through trauma or disease such as osteomyelitis, and not to the loss of the alveolar process as a result of periodontal disease, since such loss is not considered disabling." 38 C.F.R. § 4.150; Diagnostic Code 9913; see also Simmington v. West, 11 Vet. App. 41 (1998). The Veteran contends his missing teeth should be service connected because he lost them following a vehicle accident in service. See July 2021 hearing transcript. The Veteran's STRs show that, in November 1954, the Veteran was seen after an automobile accident. He sustained lacerations to his face and fractures to the mandible and maxilla. February 1955 X-ray studies showed considerable loss of motion of the head of the mandible bilaterally, but no abnormalities of the head or fossa. A September 1955 separation examination report noted teeth 1, 16, 19, and 30 were missing, tooth 7 was restorable, and there was a fixed bridge from tooth 8 to tooth 11. No loss of substance of body of maxilla or mandible was noted. Following service, an August 2008 VA dental and oral examination report notes the Veteran's history of fractured maxilla and mandible in service; his jaw was wired for weeks as a result. The Veteran also reported a history of many dental restorative procedures and subsequent lost teeth. X-ray studies were completed; these showed tooth loss and periodontal disease. Examination revealed multiple missing teeth with dental prosthetic appliances. There was no loss of bone of the maxilla, no malunion or nonunion of the maxilla, and no loss of bone of the mandible, no nonunion or malunion of the mandible. There was no loss of bone of the hard palate. The examiner stated there was no tooth loss due to loss of substance of body of maxilla or mandible. An August 2016 VA dental and oral conditions DBQ notes the examiner reviewed the claims file, including the records of treatment following an automobile accident in service. Currently, the Veteran had 11 remaining natural teeth, supporting a maxillary and mandibular partial denture. All teeth were nonrestorable due to periapical abscesses, rampant caries, and advanced periodontal disease. Dentures had been recommended, but declined by the Veteran. Examination revealed no loss of bone of the maxilla (other than due to edentulous atrophy or periodontal disease). After reviewing the evidence, the Board concludes that service connection for compensation purposes is not warranted. The Veteran does not have loss of teeth due to loss of substance of body of maxilla or mandible. In reaching this conclusion, the Board affords the 2008 VA examination significant weight, as imaging studies were performed and indicated none of the required losses. The 2016 VA examination confirmed these findings. Therefore, the claim must be denied. In reaching this decision the Board concludes that, as the evidence persuasively favors against service connection for loss of teeth, it is not in approximate balance, and the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107(b); Lynch v. McDonough, supra. 3. Neck Disability The Veteran seeks service connection for a neck disability, which he maintains is due to a vehicle accident in service. He reported limited range of motion in his neck due to the accident and indicated he has suffered from symptoms related to a neck disability since service. See June 2016 VA Form 21-526EZ; July 2021 hearing transcript. While a 2016 VA examination report confirms the Veteran has current diagnoses of cervical strain with multilevel degenerative disc change and facet arthropathy, his STRs are silent for any signs, symptoms or diagnoses relating to a neck disability. In fact, in his September 1955 separation report of examination is negative for findings related to a neck disability. Clinical evaluation of the neck was normal at separation. STRs do show the Veteran's injuries to his jaw, chin, and lip from a vehicle accident in 1954; however, no complaints or findings related to the neck were noted. September 1955, October 1955, March 2008, and December 2009 VA compensation claims submitted by the Veteran are negative for any mention of neck disability. It is reasonable to presume that if the Veteran had been suffering from symptoms of a neck disability related to service at those times, he would have noted it along with his other disabilities. Additionally, there is no medical evidence of complaints or findings related to arthritis of the neck within one year of service so as to warrant service connection on a presumptive basis under 38 C.F.R. § 3.307 and 3.309. The earliest evidence of neck complaints is seen in 2015 VA treatment records, which notes the Veteran was seen with neck pain after a fall on his driveway. An August 2016 VA medical opinion notes the examiner's opinion that the Veteran's neck disability was less likely than not incurred in or caused by his military service, to include as a result of an automobile accident therein. In this regard, the examiner noted the Veteran was 85 years old with multi-level arthritis of the spine and multi-joint arthritis. The examiner opined that the current neck disability "is due to natural aging and not an auto accident 62 years ago in 1954." The opinion was based on a review of the evidence of record and examination of the Veteran. There is no medical opinion or other competent evidence to the contrary. Although the Veteran believes his neck disability related to his military service, he is not shown to be competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships and the ability to interpret complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, supra; see also Kahana v. Shinseki, supra. Consequently, the Board gives more probative weight to the VA examiner's medical opinion in this case. Based on the foregoing, the Board finds that there is no evidence that the Veteran's neck disability manifested in service or is otherwise related to his military service. In reaching this decision the Board concludes that, as the evidence persuasively favors against service connection for a neck disability, it is not in approximate balance, and the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107(b); Lynch v. McDonough, supra. Compensable Rating for TBI from June 7, 2016, to November 1, 2017 While the Veteran's appeal for an increased initial rating for his TBI was pending, service connection for that disability was severed, effective November 1, 2017. See November 2017 rating decision. The Veteran did not file a notice of disagreement to the November 2017 rating decision or perfect an appeal of the issue of the propriety of the severance of service connection. Under 38 C.F.R. § 3.400(o)(1), a retroactive increase or other additional benefit cannot be awarded after service connection has been severed. Therefore, although service connection for TBI was in effect from June 7, 2016, to November 1, 2017 (date of severance), an increased rating may not be awarded even for that time period. Accordingly, a higher rating for the Veteran's TBI is precluded, and the claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS FOR REMAND Service Connection for Sinusitis and Headaches The Veteran claims his current sinusitis and headaches are secondary to his service-connected residuals of fractured mandible and maxilla. See June 2016 VA Form 21-526EZ. Alternatively, he maintains he has had these disabilities since an in-service vehicle accident. See July 2021 hearing transcript. While VA medical opinions were obtained in August 2016, the etiology opinions provided are not adequate for adjudication purposes. In part, the VA examiner opined the Veteran's headaches were not due to his service-connected fractured jaw, but did do not provide an opinion on aggravation or a direct service connection opinion. Additionally, the VA examiner opined the Veteran's sinus problems began during his childhood and therefore was not due to his service-connected fractured jaw. However, the examiner cited to no medical evidence and provided no reasons and bases for this opinion. Moreover, the examiner did not state whether there was clear and unmistakable evidence that any pre-existing sinusitis was not aggravated beyond the natural progression of the condition. See August 2016 VA medical opinion DBQ. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Addendum opinions should be obtained on remand. The matters are REMANDED for the following action: 1. Forward the Veteran's claims file to an appropriate VA examiner who must review the claims file (to include this remand) and provide an addendum opinion as to: a) whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's headache disability is related to any incident from his period of active military service (as distinguished from any post-service incident), to include a 1954 vehicle accident; and b) whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's service-connected residuals of fractured mandible and maxilla caused or aggravated his headache disability. For the purposes of secondary service connection, the examiner is advised that aggravation is defined as "any increase in disability." See Allen v. Brown, 7 Vet. App. 439, 448 (1995). The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. If the examiner determines that the requested opinion may not be provided without a physical examination of the Veteran, then such should be scheduled. A complete rationale must be provided for all opinions presented. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should provide an explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. Forward the Veteran's claims file to an appropriate VA examiner who must review the claims file (to include this remand) and provide an addendum opinion as to: a) whether there is clear and unmistakable (obvious, manifest, or undebatable) evidence that sinusitis pre-existed the Veteran's military service? b) If it is determined that sinusitis clearly and unmistakably preexisted service, is there clear and unmistakable (obvious, manifest, or undebatable) evidence that the pre-existing sinusitis was not aggravated beyond the natural progression of the condition? The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. c) If sinusitis did not clearly and unmistakably pre-exist service, did it at least as likely as not (50 percent probability or greater) have its onset during service or is it otherwise related to any incident from active military service (as distinguished from any post-service incident), to include a 1954 vehicle accident; and d) whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's service-connected residuals of fractured mandible and maxilla caused or aggravated his sinusitis disability. For the purposes of secondary service connection, the examiner is advised that aggravation is defined as "any increase in disability." See Allen v. Brown, 7 Vet. App. 439, 448 (1995). The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. If the examiner determines that the requested opinion may not be provided without a physical examination of the Veteran, then such should be scheduled. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Fletcher, Kathleen 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.