Citation Nr: 22047482 Decision Date: 08/22/22 Archive Date: 08/22/22 DOCKET NO. 16-15 136A DATE: August 22, 2022 ORDER Entitlement to service connection for an eye disability is denied. Entitlement to service connection for loss of teeth, for compensation purposes, is denied. FINDINGS OF FACT 1. The weight of the competent and credible evidence of record is against a finding that the claimed eye disability is related to active service. 2. Replaceable missing teeth are not considered disabilities for which service connection may be established. CONCLUSIONS OF LAW 1. The criteria for service connection for an eye disability have not been met. 38 U.S.C. §§ 1110, 1131, 1132, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for loss of teeth, for compensation purposes, have not been met. 38 U.S.C. §§ 1110, 1131, 1712; 38 C.F.R. §§ 3.303, 3.381, 4.150, 17.161. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1962 to June 1964. He died in October 2016. The Appellant is the surviving spouse and has been properly substituted for the purposes of claims pending before VA at the time of the Veteran's death. The Board remanded the matters for further development in March 2020 and February 2021. In light of the obtaining of the requested medical opinions, and the further adjudicatory actions taken by the Agency of Original Jurisdiction (AOJ), the Board finds that there has been substantial compliance with the remand requests. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141 (1999). Service Connection Service connection may be established for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a causal relationship between the claimed in service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be established for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Furthermore, service incurrence will be presumed for certain chronic diseases if manifest to a compensable degree within the year after active service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. 1. Entitlement to service connection for an eye disability The Veteran's May 1962 service entrance examination report found that the Veteran had normal eyes. His vision was noted to be 20/20 in both eyes. A September 1963 service treatment record shows that the Veteran experienced blurring and difficulty with his vision since 1956 after an accident during which the Veteran was thrown by a horse. In November 1963, the Veteran was prescribed glasses. The Veteran's May 1964 service separation examination report found that the Veteran had normal eyes. His vision was noted to be 20/20 in both eyes. At a March 2014 VA examination, the examiner diagnosed senile cataracts both eyes, blepharitis, and atrophic nasal pterygium left eye. The Veteran stated that when he was at the shooting range while he was on active duty, sand fell into his eyes. He stated that he was prescribed eyeglasses at that time. The examiner did not provide an etiology opinion. In September 2020, a VA examiner reviewed the claims file and opined that the Veteran's bilateral senile cataracts did not have their onset during service and were not related to any event or injury during the Veteran's active service. The examiner explained that bilateral senile cataracts were age-related changes in the lens of the eye. The examiner noted that at the Veteran's last refractive error evaluation in September 2014, the Veteran had very good visual acuity in both eyes. The examiner stated that blepharitis is an inflammation along the edge of the eyelids that was most often caused by an infection or a skin condition. The examiner found no mention of blepharitis in the service medical records. The first mention of blepharitis in the record was in a February 2013 treatment record. The examiner opined that the Veteran's blepharitis was less likely as not to have had its onset during service or be related to any event or injury during the Veteran's active service. The examiner explained that pterygia were non-malignant, slow-growing proliferations of conjunctival tissue in the eye which extend over the cornea. The examiner stated that long-term exposure to sunlight, wind, and chronic eye irritation from dry, dusty conditions played a causal role in their development. The examiner opined that the Veteran's atrophic nasal pterygium of the left eye, did not have its onset during service and was not related to any event or injury during the Veteran's active service. In February 2021, a VA examiner reviewed the claims file and opined that the Veteran's bilateral senile cataracts, blepharitis, and atrophic nasal pterygium of the left eye clearly and unmistakably did not pre-exist the Veteran's entrance to active service. The examiner noted that the Veteran had refractive error which was considered a congenital or developmental condition, not a disease. The examiner noted that the Veteran had 20/20 uncorrected vision in both eyes at induction and separation examinations. The examiner opined that no ocular conditions had their onset during or were otherwise related to any event or injury during the Veteran's active service. As a preliminary matter, a veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that (1) the disability existed prior to service and (2) was not aggravated by service will rebut the presumption of soundness. 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003. Clear and unmistakable standard is an onerous one consisting of evidence that is undebatable. Cotant v. Principi, 17 Vet. App. 116 (2003); Vanerson v. West, 12 Vet. App. 254 (1999). Although a September 1963 service treatment record suggested that the Veteran had blurred vision dating from 1956, the May 1962 service induction physical report did not note any eye disability. Further, none of the medical examiners of record has opined that the Veteran's claimed eye disability pre-existed the Veteran's entrance to service. As the evidence shows debate regarding whether the Veteran experienced blurred vision prior to active duty, the clear and unmistakable standard has not been met. Therefore, the Veteran is presumed to have been sound as to any eye disability upon entering active duty. The Board finds that service connection for an eye disability is not warranted. None of the medical treatment providers or examiners has given any indication in the record that the claimed eye disability could be related to active service. The only evidence which provides any connection between the Veteran's current eye disability and service comes from the Veteran himself. It is to be noted that the Board is not free to substitute its own judgment for that of a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). However, the Board is required to assess the credibility and weight to be given to evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Board has considered the Veteran's lay statements. Laypersons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, as to the specific issue in this case, whether the Veteran's claimed eye disability was caused by active service, that issue falls outside the realm of common knowledge of a layperson. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As a layperson, it is not shown that the Veteran possessed the medical expertise to provide such an opinion, and no competent nexus opinions are of record. The Board finds the September 2020 and February 2021 VA examiners' opinions to be more persuasive than the lay statements of record. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The opinions of the September 2020 and February 2021 VA examiners are highly persuasive because they are supported by detailed rationale and provided by trained medical professionals. The VA examiners specifically identified and discussed the Veteran's eye disabilities. The VA examiner explained the nature of the eye disabilities. Accordingly, the September 2020 and February 2021 VA opinions are found to carry significant weight. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. Hayes v. Brown, 5 Vet. App. 60 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence); Wood v. Derwinski, 1 Vet. App. 190 (1992). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Accordingly, after a careful review of the evidence of record, the Board finds that the weight of the evidence is against the claim. No causal connection between the Veteran's service and his eye disability is demonstrated by the evidence of record. The Board is appreciative of the Veteran's faithful and honorable service to our country. However, because the weight of the evidence is against the claim, the claim must be denied. The Board finds that the evidence is not in approximate balance and there is no reasonable doubt to resolve in favor of the Veteran. As the weight of the evidence is against the claim of entitlement to service connection for an eye disability, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for loss of teeth, for compensation purposes 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 for in 38 C.F.R. §§ 3.381, 17.161. To establish entitlement to service connection for VA outpatient dental treatment purposes for a tooth, the Veteran must have sustained a combat wound or other in-service trauma. 38 U.S.C. § 1712; 38 C.F.R. § 3.381(b). Effective February 29, 2012, VA amended 38 C.F.R. § 3.381 primarily to clarify the respective responsibilities of VBA and VHA in determinations concerning eligibility for dental treatment. Fed. Reg. 4469 (Jan. 30, 2012). The significance of finding that a dental condition is due to in-service trauma is that a Veteran will be eligible for Class II(a) VA outpatient dental treatment, without being subject to the usual restrictions of a timely application and one-time treatment. 38 U.S.C. § 1712(a)(1)(C); 38 C.F.R. § 17.161(c). A September 1962 service medical record found that the Veteran was missing teeth #1, 5, 9, 10, 11, 12, 14, 16, 17, 19, 20, 30, 31, and 32. The Veteran's May 1964 service separation examination report shows that the Veteran had a normal mouth. The report indicates that the Veteran was missing teeth #3, 5, 9, 10, 11, 13, 15, 16, 18, 19, 30, 31, and 32. In October 2020, a VA examiner reviewed the claims file and indicated that the loss of the Veteran's teeth was not due to loss of substance of body of the maxilla or mandible without loss of continuity. The loss of teeth was not due to trauma or disease. The examiner stated that the masticatory surfaces could be restored by suitable prosthesis. The examiner opined that the Veteran's condition was less likely than not incurred in or caused by service. The examiner explained that the Veteran's teeth were missing before he went into active duty, and there was no mention of trauma in the dental records found. The examiner added that the Veteran had a pre-existing dental disability of loss of teeth, which was not aggravated by active-duty service. No dental records of any trauma or evidence of osteomyelitis were found. In March 2021, a VA examiner reviewed the claims file and stated that the Veteran's dental condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by any injury, event, or illness during service. After reviewing the claims file, the examiner found no medical record evidence which supported aggravation beyond the natural progression of the loss of teeth during service. The examiner found no clinical or objective evidence to support the theory that the Veteran had bone loss of the body of the maxilla or the mandible due to trauma or disease such as osteomyelitis during service. The examiner specified that the loss of teeth followed its natural progression. The Board has thoroughly reviewed the service medical records and acknowledges that the Veteran received dental treatment during service. However, the term service trauma does not include the intended effects of therapy or restorative dental care and treatment provided during active service. 38 C.F.R. § 3.306(b)(1); VAOGCPREC 5-97 (1997), 62 Fed. Reg. 15566 (1997). No dental trauma is apparent in the service medical records, nor does it appear the Veteran or the Appellant has identified specific dental trauma in their statements of record. Therefore, the Board finds that service connection is not warranted for residuals of dental trauma. Even if the Veteran had dental trauma in service, or if the claimed dental condition was secondary to a service-connected disability, service connection for compensation purposes would still be denied. Under the applicable regulations, compensation is only available for certain types of dental and oral conditions, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla. 38 C.F.R. § 4.150. Compensation is available for loss of teeth only if the loss of the tooth is due to loss of the substance of the body of the maxilla or mandible. In this case, the Veteran did not have impairment of the mandible, loss of a portion of the ramus, or a loss of a portion of the maxilla, as found by the October 2020 and March 2021 VA medical examiners. Therefore, it is not possible for the Veteran to receive compensation for a dental or oral condition. Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not compensable disabilities. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150. A thorough review of the record shows that the Veteran's dental condition had been consistently diagnosed as replaceable missing teeth, to include by the VA examiners. Replaceable missing teeth are not considered disabilities for which service connection may be established. Therefore, the claim of service connection for compensation must be denied. Although sympathetic to the Veteran's claim, the Board is without authority to grant eligibility to benefits simply because it might perceive the result to be equitable. 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). No equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress. Smith v. Derwinski, 2 Vet. App. 429 (1992); Office of Personnel Management v. Richmond, 496 U.S. 414 (1990). The Board finds that the weight of the evidence is against the claim, and therefore service connection for loss of teeth, for compensation purposes, must be denied. The Board finds that the evidence is not in approximate balance and there is no reasonable doubt to resolve in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Layton, 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.