Citation Nr: 18160374
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 17-01 331
DATE:	December 27, 2018
ORDER
Entitlement to service connection for a head and face trauma is denied.
Entitlement to service connection for loss of front tooth for Department of Veterans Affairs (VA) compensation purposes is denied.
REMANDED
Entitlement to service connection for a low back disability is remanded.
Entitlement to service connection for neck/upper back disability is remanded.
FINDINGS OF FACT
1. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a face or head trauma or residuals of a head or face trauma.
2. The Veteran lost his tooth #8 in service after he reportedly was hit in the head by the hatch of a tank.
3. The Veteran’s loss of tooth #8 is not due to the loss of substance of the body of the maxilla or mandible due to disease or trauma. 
4. Under the laws administered by VA, replaceable missing teeth are not a disability for which VA disability compensation is payable.
CONCLUSIONS OF LAW
1. The criteria for service connection for a head and face trauma disability are not met. 38 U.S.C. §§ 1111, 1131, 5107(b) 38 C.F.R. §§ 3.102, 3.303(a) 
2. The criteria for service connection for loss of front tooth due to dental trauma for VA compensation purposes, have not been met. 38 U.S.C. §§ 1131, 1712; 38 C.F.R. §§ 3.303, 3.304, 3.381, 4.150, 17.161.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from June 1980 to September 1982. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2014 rating decision from a VA Regional Office (RO). 
The issue of entitlement to service connection for a dental disability for treatment purposes only has been raised by the record, but this issue does not appear to have been adjudicated. Therefore, the Board does not have jurisdiction over it, and it is referred to the RO for appropriate action. Specifically, the RO should refer the claim for dental treatment to the appropriate VA Medical Center.
Service Connection
Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. 
Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). In the absence of proof of a present disability, there is no valid claim for service connection; an appellant’s belief that he or she is entitled to a benefit simply because he or she had a disease or injury while on active service is mistaken, as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability at any point during the claim or appeal period. Brammer v. Derwinski, 3 Vet. App. 223 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007).
1. Entitlement to service connection for a head and face trauma
The Veteran contends that during service he had a head and face trauma and is entitled to service connection.
The Veteran stated that he struck his head and face due to a tank accident in service. The Veteran’s dental service records indicate that the Veteran had a tank accident and that he lost his #8 tooth. However, service treatment records did not indicate any residuals of a trauma to the actual face or head. 
The Veteran’s post-service treatment records do not indicate any current head or face disability. The Veteran has not contended that he had any residuals of a head or face trauma other than the loss of his tooth (the Board addresses the Veteran’s tooth claim below). 
There is no evidence of a current head and face disability, or any indicated symptom that would cause functional impairment of earning capacity and thus, there is no basis on which the claim for service connection may be granted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). It is therefore unnecessary to address any other element of service connection.
The Board notes that VA is obliged to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of disability, the record indicates that the disability or symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. As the Board found that there is no evidence of a head or face trauma residuals, the Board finds that a VA examination is not required, despite the low bar of McLendon.
2. Entitlement to service connection for a dental condition, to include the loss of a tooth
The Veteran contends that he is entitled to service connection for compensation purposes for loss of tooth #8 due to trauma sustained in service. 
Disability compensation and VA outpatient dental treatment may be provided for certain, specified types of service-connected dental disorders. For other types of service-connected dental disorders, the claimant may receive treatment only and not compensation. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150, 17.161. On review of the facts of this case, the issue of entitlement to dental treatment has been raised and has thus been referred to the RO for appropriate action as noted above.
The Veteran stated that he lost his tooth when a hatch from an armored personnel carrier hit him. Service treatment records confirm that the Veteran was in a tank accident and he lost his tooth #8 in January 1981. 
The Veteran underwent a VA contracted dental examination in July 2017. The examiner noted that there was no loss of bone of the maxilla, malunion or nonunion of the maxilla, loss of bone of the mandible, nonunion or malunion of the mandible, limitation of motion at the temporomandibular articulation, loss of bone of the hard palate, evidence of osteoradionecrosis, or evidence of osteomyelitis. There also was no tooth loss due to loss of substance of body of maxillary or mandible, or otherwise the result of loss of the ramus, loss of the condyloid or coronoid processes. The examiner noted the masticatory surfaces could be restored by a suitable prosthesis. The examiner opined that the Veteran’s #8 tooth avulsion was at least as likely as not incurred in or caused by the claimed in-service event injury, or illness. The examiner reasoned that front tooth loss would be a normal result from the type of injury sustained by a tank door while on active duty. 
The Board notes that disability compensation may be provided for certain specified types of service-connected dental disorders (Class I). See 38 C.F.R. § 17.161 (a). The dental disabilities which may be awarded VA compensation are set forth under 38 C.F.R. § 4.150. These disabilities include chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, 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. 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. There is no time limitation for making application for treatment and no restriction as to the number of repeat episodes of treatment. 
There is no evidence that the Veteran has lost a tooth as a result of loss of substance of body of maxilla or mandible due to trauma or disease, from loss of the ramus, from loss of the condyloid or coronoid processes, or from loss of the hard palate. See 38 C.F.R. § 4.150. Therefore, despite the evidence that the Veteran lost the tooth due to a service related injury, the Veteran is not eligible for compensation associated with the loss of tooth #8, as this is not a disability for which compensation may be paid.
 REASONS FOR REMAND
1. Entitlement to service connection for a low back disability
The Veteran contends that his low back disability was caused by his service. Specifically, the Veteran contends that he was hit in the head with a hatch from an armored personnel carrier which resulted in a trauma to his back. The Veteran also stated that during service he frequently carried heavy items.
The Board notes that the Veteran’s service dental records note that the Veteran was in a tank accident in January 1981. Further, the Veteran’s service treatment records indicate that the Veteran complained of low back pain in July 1982. The July 1982 service treatment records note that there were no recent injuries and there was no medical finding concerning the Veteran’s back. 
The Veteran’s private treatment records indicate a diagnosis of degenerative and probable chronic posttraumatic changes of the lumbar and lower thoracic spine in July 2003.  There is also a diagnosis of lumbar radiculopathy at L5-S1 by EMG in August 2004.
The Veteran underwent a VA contracted examination in July 2017. The examiner opined that the Veteran the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran’s symptoms are subjective only, objective examination was normal, and there was no objective evidence of a chronic condition. The examiner stated a nexus had not been established. The examiner noted that x-ray imagining was not clinically indicated. 
The Board finds that the examiner’s rationale is inadequate for adjudication. First, the Board notes in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the United States Court of Appeals for the Federal Circuit held that “‘disability’ in [38 U.S.C.] § 1110 refers to the functional impairment of earning capacity” and “pain in the absence of a presently-diagnosed condition can cause functional impairment,” en route to its conclusion that “pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability.” 886 F.3d at 1363, 1368, 1369. The examiner provided an opinion that the Veteran only had subjective symptoms therefore, there is no nexus to service. This conclusory reasoning is not adequate. Second, the examiner indicated that he reviewed the Veteran’s claims file. It appears that the examiner did not consider pertinent evidence in the claims file. Private treatment records submitted to the record prior to the Veteran’s examination indicated that the Veteran had lumbar and thoracic arthritis as well as lumbar radiculopathy. Although these diagnoses occurred outside the appellate period, such medical evidence would reasonably require the Veteran to undergo imaging tests to determine whether the Veteran had such disabilities including arthritis. Thus, the Board finds that the examination is inadequate for adjudication and a remand is required to afford the Veteran an adequate one.     
2. Entitlement to service connection for neck/upper back disability
The Veteran contends that his upper back and cervical spine disability was caused by his service. Specifically, the Veteran contends that he was hit in the head with a hatch from an armored personnel carrier which resulted in a trauma to his back and neck. The Veteran also stated that during service he frequently carried heavy items.
As noted above the Veteran’s service dental records note that the Veteran had a tank accident in-service. 
The Veteran’s VA treatment records indicate that the Veteran has a diagnosis of cervical spondylosis in June 2013. 
VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006). As the Veteran has a diagnosed cervical spondylosis and there is some evidence that the Veteran has a sign or symptom that may be related to an in-service event, a remand for an examination is warranted.
The matters are REMANDED for the following action:
1. Obtain any relevant updated VA treatment records.
2. Schedule the Veteran for a VA examination by an appropriate clinician to determine the etiology of the Veteran’s low back disability. After identifying all current back disabilities (or any functional impairment of earning capacity in the absence of a diagnosis), the examiner must opine as to the following:
(a.) Whether the Veteran’s low back disability, to include arthritis, is at least as likely as not related to an in-service injury, event, or disease.
i.	The examiner must address the in-service tank accident reported in the Veteran’s service dental records.
ii.	The examiner must address the Veteran’s in-service July 1982 complaint of low back pain.
iii.	The examiner must address the Veteran’s lay statements to include that the Veteran had to carry heavy items in-service and that his tank injury caused his low back pain.
iv.	The examiner should address the post-service diagnoses of degenerative and probable chronic posttraumatic changes of the lumbar and lower thoracic spine in July 2003, and the diagnosis of lumbar radiculopathy at L5-S1 in August 2004.
(b.) Whether the Veteran’s lumbar arthritis is at least as likely as not manifested within one year after discharge from service.
(c.) Whether the Veteran’s lumbar arthritis was noted during service with continuity of the same symptomatology since service.
(d.) A full and complete rationale must be provided for all expressed opinions.
i.	The examiner must address the Veteran’s July 1982 in-service complaint of low back pain.
3. Schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of any upper back and/or cervical disability. The examiner must opine as to the following:
(a.) Identify any upper back and/or cervical spine.
(b.) Whether the Veteran’s upper back and/or cervical spine disability is at least as likely as not related to an in-service injury, event, or disease, including in-service tank accident.
i.	The examiner must also address the Veteran’s lay statement that he had to carry heavy items in-service.
If the examiner finds the Veteran has arthritis in the upper back and/or cervical spine, then opine as to the following:
(c.) Whether the Veteran’s upper back and/or cervical spine arthritis is at least as likely as not manifested within one year after discharge from service.
(d.) Whether the Veteran’s upper back and/or cervical spine arthritis was noted during service with continuity of the same symptomatology since service.
(e.) A full and complete rationale must be provided for all expressed opinions.

 
S. L. Kennedy
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Robert Batten, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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