Citation Nr: 0322847 Decision Date: 09/05/03 Archive Date: 09/11/03 DOCKET NO. 00-13 661 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for periodontal disease for VA outpatient dental treatment eligibility. REPRESENTATION Appellant represented by: Virginia Department of Veterans Affairs ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The veteran served on active duty from April 1978 to April 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1999 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, that inter alia denied service connection for periodontal disease. In an August 2002 decision, the Board deferred this issue pending additional development. FINDING OF FACT Chronic periodontal disease developed during active service. CONCLUSION OF LAW The criteria for eligibility for VA outpatient dental treatment are met. 38 U.S.C.A. §§ 1110, 1712, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.381 (2002). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background The veteran's service medical records (SMRs) reflect that an examination in September 1977 found no pertinent defect. During active service, the veteran was treated for excessive gum bleeding and periodontal disease. In November 1989, she reported pain in her gums and an examination revealed an abscess associated with #2. In January 1991, periodontal bone loss and recession at teeth 13-15 with excessive bleeding on probing and complaint of pain and sensitivity were noted. In May 1995, some tissue damaged by periodontal disease was removed by curettage. A medical consent form reflects that the veteran was notified at that time that some bone from around the base of the teeth might also be removed during curettage. During a pre-retirement examination in September 1997, the veteran checked "yes" to history of severe tooth or gum trouble and she reported severe gum disease with cleaning required every three months. In May 1998, the veteran filed an application for VA service connection, listing gum disease among others. She reported that gum disease began in 1994 and had required cleaning every three months since that time. The veteran underwent a VA compensation and pension examination for dental and oral conditions in June 1998. During the examination, the veteran reported periodontal disease that needed cleaning every three months. The examiner found no functional impairment or masticatory loss. The only missing tooth that had not been replaced was #19. The examiner noted bone loss due to periodontal disease but provided no specifics. The diagnosis was periodontitis. In a decision issued in April 1999, the RO determined that the claim was not well grounded on the basis that the veteran's periodontal disease did not result in disability. In her timely April 2000 notice of disagreement, the veteran clarified that she sought eligibility for dental treatment only. In March 2001, the RO sent a VCAA letter to the veteran explaining that the claim would be reviewed and that the RO would attempt to obtain any additional medical evidence identified by the veteran. In a January 2002 rating decision, the RO denied service connection for periodontal disease on the basis that service connection was not available for periodontal disease. In August 2001, the RO sent a letter to the veteran notifying her of the provisions of the VCAA. The most recent RO rating decision of record was issued in March 2002. This decision reflects that service connection has been established for several disorders and that the combined service-connected disability rating was 70 percent. In June 2002, the RO issued an SOC addressing the denial of service connection for periodontal disease for compensation purposes. As noted in the introduction, in August 2002, the Board deferred the issue pending additional development to be undertaken by the Board. In August 2002, the Board requested from the Richmond VA Medical Center any VA medical administration service records including any determination of eligibility for VA dental treatment. In response, the Richmond VA Medical Center supplied a copy of the June 1998 dental and oral compensation and pension examination report, but no other record. II. VCAA During the pendency of this appeal, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326) (2002). The VCAA and the implementing regulations are liberalizing and are therefore applicable to the issues on appeal. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). The VCAA and the implementing regulations essentially eliminate the requirement that a claimant submit evidence of a well-grounded claim, and provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary (i.e., to VA) that is necessary to substantiate the claim. VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). By letter dated in August 2001, the RO notified the veteran that she should submit any supporting evidence or inform the RO of the location of that evidence and the RO would assist in obtaining it. Moreover, the RO has attempted to obtain, and has associated with the claims file, all pertinent SMRs and VA medical records identified. In Karnas, supra, the United States Court of Appeals for Veterans Claims (hereinafter referred to as the Court) held that where a 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 should and will apply unless Congress provides otherwise or permits the Secretary to do otherwise. The Court has also held that where a Board decision addresses a question that had not been addressed by the RO, it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument on that question and an opportunity to submit such evidence and argument and to address that question at a hearing, and, if not, whether the claimant has been prejudiced thereby. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). During the appeal period, the Board undertook additional development of the claim pursuant to regulations that authorized the Board to take such action. More recently, the regulation authorizing the Board to develop evidence or to cure a procedural defect was invalidated. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). The decision herein is based in part on evidence developed by the Board pursuant to the invalidated regulation; however, because the decision is favorable to the veteran, no unfair prejudice to her will result by the Board's adjudication prior to the issuance of another SSOC. III. Legal Analysis Prior to June 8, 1999, VA regulations provided that treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, periodontal disease (pyorrhea), and Vincent's stomatitis were not disabling conditions, and could be considered service connected solely for the purpose of determining entitlement to dental examination or outpatient dental treatment. 38 C.F.R. § 4.149 (1998); Simington v. West, 11 Vet. App. 41 (1998). At the time the veteran submitted her dental claim, VA regulations also provided that the statutory presumption of soundness at the time of entrance into active service was applicable in cases of dental conditions not disabling to a compensable degree. Concerning the revisions to VA regulations, the reference in the prior version of 38 C.F.R. § 4.149, regarding the disabilities for which service connection was precluded, was eliminated; however, nearly identical language then appeared at 38 C.F.R. § 3.381(a). See 64 Fed. Reg. at 30,393. Under the VA regulations that became effective on June 8, 1999, 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, and rating action 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. See 38 U.S.C.A. § 1712 (West 2002); 38 C.F.R. § 3.381 (2002). In addition, all of 38 C.F.R. § 3.382, which allowed for the establishment of service connection for Vincent's disease and/or pyorrhea, was eliminated. The end result is essentially the same as prior to the change with respect to gingivitis and periodontitis in that service connection for periodontal disease will be granted solely for the purpose of establishing eligibility for outpatient dental treatment. 38 C.F.R. § 3.381 (2002); 64 Fed. Reg. 30392-30393 (June 8, 1999). The Board finds that the veteran is not adversely affected by adjudication of the periodontal disease issue without delay for further notice in this regard. Bernard v. Brown, 4 Vet. App. 384 (1993); Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). In order to establish service connection for a disability, the evidence must show it resulted from disease or injury incurred in or aggravated by active service. No compensation shall be paid if the disability is a result of the person's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. § 1110, 1137 (West 2002); 38 C.F.R. § 3.303 (2002). In determining service connection for dental disability, the condition of the teeth and periodontal tissues at the time of entry will be considered. 38 C.F.R. § 3.381(c). Acute periodontal disease will not be considered service-connected for treatment purposes. 38 C.F.R. § 3.381(e)(2) (2002). 38 C.F.R. § 4.150 contains the rating schedule for dental and oral conditions. Periodontal disease is not listed. 38 C.F.R. § 4.150, Diagnostic Code 9913 applies to loss of teeth due to loss of substance of the body of the maxilla or mandible and provides that the disability rating applies only to bone loss through trauma or disease such as osteomyelitis, and not to 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, Note 1 (prior to and on June 8, 1999). Therefore, although bone loss due to periodontal disease is mentioned in the veteran's medical records, it is not subject to compensation under Diagnostic Code 9913. In this case, the veteran has clearly indicated that she seeks service connection for periodontal disease solely for the purpose of establishing eligibility for VA dental treatment. The record does not reflect that periodontal disease existed at the time of entry into active service or that the periodontal disease first noted during active service was merely an acute infection. The SMRs contain frequent references to periodontal disease over time such that the Board may find that the disorder began during active service and is chronic. Therefore, the regulatory requirements for establishing outpatient dental treatment eligibility have been met. This decision does not address what treatment, if any, the veteran may be entitled to; that is a question to be addressed by a VA treatment facility to which the veteran has applied, and is subject to such limitations as may be found in 38 C.F.R. § 17.161 (2002). ORDER Service connection for periodontal disease for the purpose of VA outpatient dental treatment eligibility is granted. ____________________________________________ J. E. Day Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.