Citation Nr: 0007002 Decision Date: 03/15/00 Archive Date: 03/23/00 DOCKET NO. 98-14 241 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for bilateral hearing loss. 2. Entitlement to service connection for periodontal disease and a dental condition due to dental trauma. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL Appellant and his spouse. ATTORNEY FOR THE BOARD Patricia A. Boston, Counsel INTRODUCTION The veteran served on active duty from October 1952 to September 1955, and from December 1955 to March 1959. This matter comes before the Board of Veterans' Appeals (hereinafter the Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In December 1992 the RO determined that new and material evidence had not been submitted to reopen a claim for service connection for bilateral hearing loss. The veteran was notified of that decision and of his appellate rights. The veteran did not appeal that decision. This decision is final. In January 1995, the RO determined that new and material evidence sufficient to reopen a claim for service connection for hearing loss had not been received. The veteran submitted an apparent notice of disagreement in February 1995. Accordingly, the January 1995 decision is not final. A hearing was held at the RO in January 1999. The veteran was afforded a hearing before a member of the Board sitting at Washington, D.C., in August 1999. The member of the Board who held the hearing is making the decision in this case and is the signatory to this decision. Of record is a Dental Rating Sheet dated in January 1993. At that time it was reported that the veteran was claiming gum surgery and infections. There was no evidence of any trauma. The letter notifying him of that decision is not on file. The statement of the case reflects that the RO based the current decision on a de novo review of the record. In order to ensure the veteran's right of due process, the Board will due likewise. The veteran has raised the issue of service connection for tinnitus. This issue has not been adjudicated by the RO and is referred to the RO for appropriate action. FINDINGS OF FACT 1. Service connection for bilateral hearing loss was denied by the RO in December 1992. The veteran did not appeal that decision. 2. Additional evidence received since the December 1992 rating decision includes information which is relevant and probative to the issue of entitlement to service connection for bilateral hearing loss, and by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 3. The claim for service connection for bilateral hearing loss is plausible. 4. There is no competent medical evidence of record which establishes that the veteran's current dental disorders are causally related to service or to any incident or event therein. CONCLUSIONS OF LAW 1. The additional evidence received since the unappealed December 1992 RO decision is new and material and the veteran's claim for service connection for bilateral hearing loss is reopened. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (1999). 2. The claim for entitlement to service connection for bilateral hearing loss is well grounded. 38 U.S.C.A. § 5107 (West 1991). 3. The claim for entitlement to service connection for periodontal disease and a dental condition due to dental trauma is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Bilateral Hearing Loss Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty. 38 U.S.C.A. §§ 1110, 1131. Furthermore, service connection will be granted for sensorineural hearing loss, if it is manifested to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 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 disease was incurred in service. 38 C.F.R. § 3.303(d). Where claims are made by a veteran who has engaged in combat with the enemy in active service during a period of war, the VA shall accept as sufficient proof of service connection, satisfactory lay or other evidence of service incurrence, if consistent with the circumstances, conditions or hardships of such service, notwithstanding the fact that there is no official record of such incurrence in service. Service connection for such injury or disease may be rebutted, however, by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154 (West 1991); 38 C.F.R. § 3.304(d). Service connection for impaired hearing will be established when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, 4,000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies 500, 1,000, 2,000, 3,000, or 4,000 hertz 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. The United States Court of Veterans Appeals (Court) has indicated that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet.App. 155 (1993). The evidence of record at the time of the December 1992 rating decision may be briefly summarized. The service medical records for the veteran's first and second period of active service do not show complaints or findings of any bilateral hearing loss or deficit. A Department of Veterans Affairs (VA) audiometric examination was conducted in July 1969. The audiometric examination showed some impairment of discriminatory ability. The diagnosis was hearing loss, mainly in the left ear, of a combined type. It was reported that the conductive factor was thought to be preservice residual otitis media and that the perceptive factor was acoustic trauma. Subsequent reports of VA inpatient and outpatient treatment plus reports of VA examination show that the veteran continued to have problems with impaired hearing. A VA audiometric examination performed in July 1983 showed that the veteran had a severe to profound, bilateral sensorineural hearing loss. In March 1989, the veteran appeared at a hearing held before a member of the Board. At the hearing, the veteran contended that exposure to explosive noises sustained in Korea was responsible for his hearing loss. In June 1989, the Board denied service connection for bilateral hearing loss. At that time, the Board found that bilateral hearing loss, including sensorineural hearing loss, was not shown in service and a sensorineural hearing loss was not present within one year following separation from service. Subsequently received were VA outpatient treatment records dated in 1990 and 1991 which show treatment for several disabilities. A report of a VA audiological examination conducted in December 1991 includes a diagnosis of severe bilateral sensorineural hearing loss. In December 1992 the RO denied service connection for bilateral hearing loss. At that time the RO determined in effect that new and material evidence had not been received to reopen the claim for service connection for hearing loss. The veteran was notified of that decision and of his appellate rights. He did not appeal that decision. Accordingly, the December 1992 decision is final. In January 1995, the RO determined that new and material evidence sufficient to reopen the claim had not been received. The veteran was notified of that decision in February 1995 and of his appellate rights. He did not appeal that determination. Accordingly, the December 19992 decision is final. 38 U.S.C.A. § 7105 (West 1991). However, the veteran may reopen his claim by the submission of new and material evidence. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). New and material evidence means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which, by itself or in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a); See also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The United States Court of Appeals for Veterans Claims (Court) has held that, in determining whether evidence is new and material, the credibility of the new evidence is, preliminary, to be presumed. Justus v. Principi, 3 Vet.App. 510 (1992). However, the evidence must be competent in order for the presumption to attach. LeShore v. Brown, 8 Vet.App 406, 409 (1998). The evidence received since the December 1992 decision includes duplicate service medical records, a duplicate summary of VA hospitalization dated in June 1970, and VA medical records showing treatment during the 1980s and from 1992 to 1994. A VA examination report dated in February 1996 includes a diagnosis of hearing loss. Two lay statements dated in May 1997, are the effect that when the veteran returned from the war he had hearing problems. Hearings were held at the RO in January 1999 and before a member of the Board sitting at Washington D. C. in August 1999. At that time the veteran testified that he has bilateral hearing loss as a result of his active service. He reported that he was exposed to a shell explosion near his head while in combat in Korea; that he experienced pain in both ears as a result of the shell explosion. He testified that since that since that explosion he has experienced hearing loss. He further testified he received treatment for his bilateral hearing loss at a VA medical facility in Syracuse, New York in 1961 after service. He stated that he received hearing aids from a private physician, who is now deceased, many years after service. He indicated that his bilateral hearing loss has progressively worsened over the years. To summarize, the evidence submitted since the January 1992 decision includes lay statements and testimony by the veteran's spouse which are to the effect that the veteran had difficulty hearing after his discharge from active duty. Lay statements are considered competent evidence when describing a symptom of a disease or injury. Likewise the credibility of these statements are presumed to be true for new and material purposes per Justus. The Board finds that the additional evidence by itself or in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a); See also Hodge, supra. Therefore, the Board finds that the additional evidence is new and material and the veteran's claim of service connection for bilateral hearing loss has been reopened. In Elkins v. West, 12 Vet.App. 209 (1999), the Court held that in making a determination as to whether new and material evidence has been submitted to reopen a previously denied final decision, a three-step process is required. It must first be determined whether new and material evidence has been submitted. If new and material evidence has been submitted, then the Secretary must determine whether, the claim is well grounded pursuant to 38 U.S.C.A. § 5107 (West 1991). If the claim is well grounded, the merits of the claim will be evaluated after the duty to assist under 38 U.S.C.A. § 5107 (West 1991) has been fulfilled. See Bernard v. Brown, 4. Vet.App. 384 (1994). The three elements of a well grounded claim for service connection benefits are: (1) evidence of a current disability as provided by a medical diagnosis; (2) evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and, (3) a nexus, or link, between the inservice disease or injury and the current disability as provided by competent medical evidence. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995); 38 C.F.R. § 3.303. In this regard, the service administrative records show that the veteran was awarded the Combat Infantryman Badge for engaging the enemy during the Korean Conflict. According the Board is satisfied that he was exposed to acoustic trauma during service. The service medical records show no complaint of hearing loss. The September 1959 separation examination showed hearing for the whispered voice was 15/15 bilaterally. An audiological examination was not conducted at that time. During the July 1969 VA ear examination the veteran reported that an explosion in combat caused ringing and deafness in the left ear. The diagnosis was hearing loss, mainly in the left ear, of a combined type. It was reported that the conductive factor was thought to be preservice residual otitis media and that the perceptive factor was acoustic trauma. During the August 1999 hearing he testified that since that since that explosion he has experienced hearing loss. To summarize, the July 1969 examination indicated that a portion of the hearing loss was related to acoustic trauma. The veteran did experience acoustic trauma during service. Accordingly, the Board finds the veteran's claim for service connection for bilateral hearing loss is plausible and, therefore, well grounded II. Service Connection for Periodontal Disease and Residuals of Dental Trauma Initially, the Board notes that entitlement to service connection for a particular disability requires evidence of the existence of a current disability and evidence that the disability resulted from a disease or injury incurred in or aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). Where claims are made by a veteran who has engaged in combat with the enemy in active service during a period of war, the VA shall accept as sufficient proof of service connection, satisfactory lay or other evidence of service incurrence, if consistent with the circumstances, conditions or hardships of such service, notwithstanding the fact that there is no official record of such incurrence in service. Service connection for such injury or disease may be rebutted, however, by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154 (West 1991); 38 C.F.R. § 3.304(d). With regard to the claim for entitlement to service connection for the residuals of dental trauma, service connection will be granted for dental disease or injury of individual teeth and the investing tissue, shown by the evidence to have been incurred in or aggravated by service. 38 C.F.R. § 3.381(a). As to each noncompensable service-connected dental condition, a determination will be made as to whether it is due to a combat wound or other service trauma. 38 C.F.R. § 3.381(e). Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, periodontal disease (pyorrhea) and Vincent's stomatitis are not disabling conditions, and may be considered service connected solely for the purpose of determining entitlement to dental examination or outpatient dental treatment. 38 C.F.R. § 3.381(a) (1999), effective in February 1994. Where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the veteran applies unless Congress provides otherwise. Karnas v. Derwinski, 1 Vet. App. 308 (1991). Out patient dental treatment may be authorized under 38 C.F.R. § 17.161 (1999) for the following: Class I. Those having a service-connected compensable dental disability or condition, may be authorized any dental treatment indicated as reasonably necessary to maintain oral health and masticatory function. There is no time limitation for making application. Class II (a), those having a service-connected noncompensable dental condition or disability adjudicated as resulting from combat wounds or service trauma may be authorized any treatment indicated as reasonably necessary for the correction of such service-connected noncompensable condition or disability. Class IV, those whose service-connected disabilities are rated at 100% by schedular evaluation or who are entitled to the 100% rate by reason of individual unemployability may be authorized any needed dental treatment.38 U.S.C.A. § For the purposes of determining whether a veteran has Class II(a) eligibility for dental care under 38 C.F.R. § 17.161(c), the term "service trauma" does not include the intended effects of treatment provided during the veteran's military service, including tooth extraction. See VAOPGCPREC 5-97, 62 Fed. Reg. 15566 (1997). The threshold question to be determined is whether the veteran has submitted a well-grounded claim. 38 U.S.C.A. § 5107(a). A well- grounded claim is one which is plausible; that is meritorious on its own and capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Unlike civil actions, the VA benefit system requires more than just an allegation. The veteran must submit supporting evidence that is sufficient to justify a belief by a fair and impartial individual that the claim is plausible. Tripak v. Derwinski, 2 Vet. App. 609, 611 (1992); Grivois v. Brown, 6 Vet. App. 136, 139 (1994). The three elements of a well grounded claim for service connection benefits are: (1) evidence of a current disability as provided by a medical diagnosis; (2) evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and, (3) a nexus, or link, between the inservice disease or injury and the current disability as provided by competent medical evidence. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995); 38 C.F.R. § 3.303. This means that there must be evidence of disease or injury during service, a current disability, and a link between the two. Further, the evidence must be competent. That is, the presence of a current disability requires a medical diagnosis; and, where an opinion is used to link the current disorder to a cause during service, a competent opinion of a medical professional is required. See Caluza at 504. Initially, the Board would like to point out that the veteran is service connected for post-traumatic stress disorder, evaluated as 100 percent disabling. Thus, the veteran is already entitled to receive any dental treatment under Class IV, 38 C.F.R. § 17.161. The service medical and dental records do not reveal any evidence of dental trauma. The records show that the veteran was treated at the dental clinic for periodontal disease in July 1955. During his second period of active duty he was seen at the dispensary in March 1958 for a toothache. He was referred to the dental clinic. He was treated at the dental clinic for gingivitis from November 1958 to January 1959. The veteran was seen at a VA outpatient clinic in May 1989 for painful teeth. An examination showed a severely carried tooth. A summary of VA hospitalization dated July 1992 includes diagnoses of periodontitis and irregular alveolar ridges. During the veteran's hearing at the RO in January 1999 he testified that he began having problems with his teeth while stationed in Germany. He received dental treatment in 1958 and 1959. During his hearing before the Board he also indicated that when the blast occurred during combat he hit the ground and he felt pain and blood came out of his mouth. To summarize, the service medical and dental records show no evidence of dental trauma. Additionally, the veteran has not submitted any medical or dental evidence nor is there any medical or dental evidence of record which relates any current dental disorder to the reported inservice dental trauma. The service dental records show that he did receive treatment for periodontal disease. However, the first post service indication of a dental disorder was in 1989, many years after service. Periodontitis and irregular alveolar ridges were diagnosed during his hospitalization in 1992. However, the veteran has not submitted any medical or dental evidence nor is there any medical or dental evidence of record which relates any current dental order to the reported inservice dental trauma. Therefore, the Board finds the claim for entitlement to service connection for a periodontal disease and a dental condition due to dental trauma is not well grounded and must be denied. ORDER New and material evidence has been received with regard to the issue of service connection for bilateral hearing loss, and the veteran's claim for service connection for that disability has accordingly been reopened. The claim for service connection for bilateral hearing loss is well grounded and to this extent only, the claim is granted. The claim for entitlement to service connection for periodontal disease and a dental condition due to dental trauma is denied. REMAND As previously discussed, the Board has determined that the veteran's claim for service connection for bilateral hearing loss is well grounded. If the claim is well grounded, the merits of the claim will be evaluated after the duty to assist under 38 U.S.C.A. § 5107 (West 1991) has been fulfilled. See Bernard v. Brown, 4. Vet.App. 384 (1994). VA's duty to assist the appellant in obtaining and developing available facts and evidence to support his claim includes obtaining adequate VA medical examinations. Littke v. Derwinski, 1 Vet.App. 90 (1990). During his hearing in August 1999, the veteran indicated that he received treatment for hearing loss at a VA facility in Syracuse, New York during the 1960s. These records are not on file. During his hearing at the RO he stated that in addition to the explosion over his head in Korea, he also was also that he was a machine gunner and used the Browning automatic during combat. In a January 1995 decision, the RO determined that new and material evidence had not been submitted in order to reopen claims for service connection for loss of vision and a back disability. In February 1995 the veteran submitted a notice of disagreement regarding this decision. He has not been furnished a statement of the case as required by the United States Court of Appeal for Veterans Claims in Manlicon v. West, 12 Vet. App. 238 (1999) To ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The RO should furnish the veteran the appropriate release of information forms in order to obtain copies of any additional VA and private medical records, which are not on record with regard to treatment for his defective hearing since his release from active duty. The RO should then obtain all records, which are not on file. The RO should inform the veteran that he has the opportunity to submit any additional evidence and arguments in support of his claim. 2. The RO should request the VA medical facility in Syracuse, New York to furnish copies of ant treatment records covering the period from 1960 through 1969. 3. The veteran should be scheduled for a VA examination by a specialist in ear disorders in order to determine the nature, severity and etiology of any hearing loss and tinnitus. In addition to an audiological evaluation, any other testing deemed necessary should be performed. The examiner should be provided with the veteran's claims folder and a copy of this Remand in conjunction with the examination. It is requested that the examiner obtain a detailed in service and post service history of noise exposure. Following the examination, it is requested that the examiner render an opinion as to whether it is as likely as not that any hearing loss and tinnitus diagnosed is related to the inservice noise exposure. A complete rationale for any opinion expressed should be included in the examination report. 4. The RO should furnish the veteran a statement of the case regarding the issues of whether new and material evidence has been submitted in order to reopen claims for service connection for loss of vision and a back disability. He should also be informed of the requirements necessary to perfect an appeal. The RO is informed that these issues are not before the Board until they are timely perfected. 5. After the development requested above has been completed to the extent possible, the RO should readjudicate the issue in appellate status. If the benefit sought on appeal remains denied, the veteran and his representative should be furnished a supplemental statement of the case and an opportunity to respond. Thereafter, the case should be returned to the Board for appellate consideration. The veteran has the right to submit additional evidence and argument on the matter or matters that the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. ROBERT P. REGAN Member, Board of Veterans' Appeals