Entitlement to an increased rating for pain disorder is remanded.

Published On - October 24, 2022

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Entitlement to an increased rating for pain disorder is remanded.

Dr. Craig Bash has done thousands of case evaluations at the VA Hospital/regional office/BVA and court levels. 

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Citation Nr: 19161658
Decision Date: 08/08/19	Archive Date: 08/08/19

DOCKET NO. 15-01 673A
DATE: August 8, 2019

ORDER

Entitlement to an increased rating for a scar is dismissed.

Entitlement to service connection for sleep apnea is granted.

Entitlement to service connection for a dental disability of tooth number 9 for treatment purposes is denied.

REMANDED

Entitlement to an increased rating for pain disorder is remanded.

Entitlement to an increased rating for degenerative disc disease of the cervical spine is remanded.

Entitlement to an increased rating for arthritis of the thoracolumbar spine is remanded.

Entitlement to a total disability rating due to individual unemployability is remanded.

FINDINGS OF FACT

1. At the March 2019 Board hearing, the Veteran knowingly and intentionally withdrew his claim for an increased rating for a scar.

2. Resolving any reasonable doubt in the Veteran’s favor, the evidence establishes that the Veteran’s current obstructive sleep apnea is etiologically related to his service-connected cervical-spine disability.

3. The evidence fails to establish that the Veteran has a current dental disability of tooth 9.

CONCLUSIONS OF LAW

1. The criteria for withdrawal of the appeal regarding an increased rating for a scar have been met. 38 U.S.C. § 7105(b), (d); 38 C.F.R. § 20.204.

2. The criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.310(a).

3. The criteria for entitlement to service connection for treatment purposes for tooth 9 have not been met. 38 C.F.R. § 3.381.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from February 1983 to March 1990.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the Board in March 2019.

This appeal has been advanced on the Board’s docket for financial hardship. 38 C.F.R. § 20.900(c).

1. Increased Rating for Scar

At the March 2019 hearing, the Veteran expressed his intention to withdraw his claim for an increased rating for a scar and acknowledged that he understood the effect of withdrawal. See DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Given the withdrawal of allegations of error in the determination being appealed, the appeal of this claim is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 20.204.

2. Service Connection for Sleep Apnea 

The Veteran seeks service connection for sleep apnea as secondary to his service-connected cervical spine disability.

Generally, service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for a disability which is proximately due to or aggravated in severity beyond its natural progression by a service-connected disability. 38 U.S.C. § 1131; 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995).

Turning to the evidence, a VA examination was provided in November 2014. After reviewing the Veteran’s history and examining the Veteran, the examining physician assistant opined that the Veteran’s diagnosed obstructive sleep apnea is less likely than not due to or a result of his service-connected cervical-spine disability, but is rather more likely due to a developmentally narrow oropharyngeal airway.

The Veteran’s father wrote in a June 2015 letter that while the Veteran slept quietly and peacefully when he visited home on dates closer to when he enlisted, during a holiday visit in 1989 the Veteran’s father noticed the Veteran snoring loudly, with his breathing stopping followed by loud gasping for air. The Veteran’s father also noted the Veteran lacked energy during the daytime.

In May 2017, a physician, a Dr. C.B., submitted a letter after review of the Veteran’s file and an interview with the Veteran. Dr. C.B. opined that to a 90-percent probability the Veteran’s current cervical spine disability is causing to a significant degree his sleep apnea. Dr. C.B. included a published medical article to support the etiology.

At the March 2019 hearing, Dr. C.B. testified that the Veteran’s cervical-spine disability is the primary cause of his sleep apnea.

The Board finds that the evidence establishes that the Veteran’s current sleep apnea at least as likely as not is caused by his service-connected cervical-spine disability. The November 2014 VA examiner offered a negative opinion, while Dr. C.B. offered a positive opinion. Dr. C.B. noted that he is a physician with twelve years of training, while the VA examiner is a certified physician assistant. Moreover, Dr. C.B. submitted a published article to support the etiology between sleep apnea and cervical-spine injuries. Resolving any reasonable doubt in the Veteran’s favor, the Board finds that a preponderance of the evidence establishes that the sleep apnea is related to the cervical-spine injury. 38 C.F.R. § 3.102.

Accordingly, service connection for sleep apnea secondary to the service-connected cervical-spine disability is granted. 38 U.S.C. § 1131; 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995).

3. Service Connection for a Dental Condition of Tooth 9 for Treatment Purposes

Following an in-service motor vehicle accident, a bridge was attached between teeth 9, 10, and 11. Teeth 10 and 11 are currently connected to service. The Veteran seeks service connection for tooth 9.

An October 2015 VA examiner stated that there is no pathology for tooth 9 upon which to render a diagnosis. He explained that tooth 9 “is part of a Maryland bridge that will need to be replaced after [a] root canal is completed on [tooth] 11.”

At the March 2019 hearing, Dr. Bash stated that the bridge attached to the Veteran’s tooth is “probably [what] cause[d] that tooth to die;” however, this testimony appeared to regard tooth 10, which is a prosthetic tooth, rather than tooth 9.

An October 2015 VA examiner stated that there is no pathology for tooth 9 upon which to render a diagnosis. He explained that tooth 9 “is part of a Maryland bridge that will need to be replaced after [a] root canal is completed on [tooth] 11.”

At the March 2019 hearing, Dr. Bash stated that the bridge attached to the Veteran’s tooth is “probably [what] cause[d] that tooth to die;” however, this testimony appeared to regard tooth 10, which is a prosthetic tooth, rather than tooth 9.

Under current VA regulations, compensation is only available for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150, including conditions of the mandible, maxilla, ramus, condyloid process, coronoid process, hard palate, and loss of teeth due to loss of substance of the body of the maxilla or mandible. See 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. Otherwise, a veteran may be entitled to service connection for dental conditions including treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease, for the sole purposes of receiving VA outpatient dental services and treatment, if certain criteria are met. 38 U.S.C. § 1712; 38 C.F.R. §§  3.381 , 17.161. 

Rating activity should consider each defective or missing tooth and each disease of the teeth and periodontal tissues separately to determine whether the condition was incurred or aggravated in line of duty during active service and, when applicable, to determine whether the condition is due to combat or other in-service trauma, or whether the veteran was interned as a prisoner of war. 38 C.F.R. § 3.381 (b). 

Based on the evidence of record, the Board finds that there is insufficient evidence of a current disability in tooth 9 that would qualify for treatment. 38 C.F.R. § 4.150. The law does not permit the Board to grant compensation or treatment for potential future conditions.

Without evidence of a current disability, the claim for service connection for a condition of tooth 9 for treatment purposes must be denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (“In the absence of proof of a present disability there can be no valid claim.”).

REASONS FOR REMAND

4. Increased Rating Claims

The Veteran seeks increased ratings for his pain disorder, cervical spine disability, and thoracolumbar spine disability.

The Veteran’s most recent examinations assessing the severity of these conditions are over four years old. The Board finds, as the Veteran argues, that new examinations are warranted to properly evaluate the Veteran’s claims for increased ratings. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Accordingly, the claims will be remanded for VA examinations.

5. Total Disability Rating Due to Individual Unemployability

To be considered for a total disability rating due to individual unemployability (TDIU) under the rating schedule, the Veteran’s service-connected disabilities must meet the following criteria: (1) if there is only one disability, this disability shall be ratable at 60 percent or more; or (2) if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a).

Here, the Veteran has neither a single disability rated at 60 percent nor multiple disabilities combining to a rating of 70 percent. Therefore, a TDIU is not available under the rating schedule.

The Veteran’s disability ratings are subject to change, however, based on the remanded increased-rating claims. Therefore, the Veteran’s TDIU claim is intertwined with the increased-rating claims and will be remanded with them. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).

The matters are REMANDED for the following action:

(Please note, this appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.)

1. Associate with the Veteran’s claims file any VA treatment records not already of record.

2. Schedule the Veteran for an examination to assess the current severity of his pain disorder. 

3. Schedule the Veteran for an examination to assess the current severity of his cervical spine disability. 

4. Schedule the Veteran for an examination to assess the current severity of his thoracolumbar spine disability.

5. After the above development and any other development deemed necessary is completed, readjudicate the Veteran’s claims, including the TDIU claim. 

 

 

K. Parakkal

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	M. Davis, Associate 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.