Citation Nr: 0903268 Decision Date: 01/30/09 Archive Date: 02/09/09 DOCKET NO. 06-12 159 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for dental enamel erosion secondary to service-connected gastroesophageal reflux disease with hiatal hernia and history of Schatzki's Ring. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Biswajit Chatterjee, Associate Counsel INTRODUCTION The veteran had active military service from January 1974 to January 1981 and from July 1985 to May 1989. This appeal to the Board of Veterans' Appeals (Board) is from a November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. As support for his claim, the veteran testified at a hearing in September 2008 at the Board's offices in Washington, DC (Central Office hearing). The undersigned Veterans Law Judge (VLJ) presided. FINDINGS OF FACT 1. VA and private dentists have confirmed the eroding enamel from the veteran's teeth is traceable to his service- connected gastroesophageal reflux disease (GERD). 2. During his recent September 2008 hearing, the veteran clarified that he is requesting VA outpatient dental treatment, not compensation, for this resulting condition. CONCLUSION OF LAW The eroding enamel from the veteran's teeth is proximately due to, the result of, or aggravated by his service-connected GERD. 38 U.S.C.A. §§ 1110, 1131, 1712, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.310, 3.381, 4.150, 17.161 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Duties to Notify and Assist Since the Board is granting the veteran's claim, there is no need to discuss whether there has been compliance with the duty-to-notify-and-assist provisions of the Veterans Claims Assistance Act (VCAA) because even if, for the sake of argument, there has not been, this is merely inconsequential and, therefore, at most harmless, i.e., non-prejudicial error. 38 C.F.R. § 20.1102; cf. Bernard v. Brown, 4 Vet. App. 384 (1993). See also Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006); Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). II. Analysis - Entitlement to Service Connection for Dental Enamel Erosion, Including as Secondary to the Service- Connected GERD with Hiatal Hernia and History of Schatzki's Ring The veteran is claiming entitlement to service connection for loss of dental enamel from his teeth, and in particular, as secondary to his service-connected GERD. According to VA regulation, disability that is proximately due to, the result of, or chronically aggravated by a service-connected condition is also considered service- connected, and when thus established, this secondary condition is considered a part of the original condition. 38 C.F.R. § 3.310(a) and (b) (2008). See also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) Establishing entitlement to service connection on this secondary basis requires evidence showing: (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service- connected disability. Medical nexus evidence is required to prove this cause-and-effect correlation. See Wallin v. West, 11 Vet. App. 509, 512 (1998) and Velez v. West, 11 Vet. App. 148, 158 (1998). The Court has specifically held that a claim for service connection for a dental disorder is also a claim for VA outpatient dental treatment. See Mays v. Brown, 5 Vet. App. 302 (1993); see also Douglas v. Derwinski, 2 Vet. App. 435, 440 (1992) (en banc) (holding that the Board is required to consider a veteran's claim under all applicable provisions of law and regulation whether or not the claimant specifically raises the applicable provision); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The determination of whether service connection may be established for the purpose of outpatient dental treatment is based on the criteria set forth in 38 C.F.R. § 3.381. As provided at 38 C.F.R. § 3.381(a), 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 in 38 C.F.R. § 17.161. Under 38 C.F.R. § 3.381(b), the rating activity will 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. When applicable, the rating activity will determine whether the condition is due to combat or other in-service trauma, or whether the veteran was interned as a prisoner of war. Further, as per 38 C.F.R. § 3.381(c), in determining service connection, the condition of teeth and periodontal tissues at the time of entry into active duty will be considered. Treatment during service, including filling or extraction of a tooth, or placement of a prosthesis, will not be considered evidence of aggravation of a condition that was noted at entry, unless additional pathology developed after 180 days or more of active service. With respect to dental conditions noted at entry and treated during service, 38 C.F.R. § 3.381(d) sets forth principles for determining whether a grant of service connection for treatment purposes is warranted. Such guidelines are as follows: (1) Teeth noted as normal at entry will be service- connected if they were filled or extracted after 180 days or more of active service; (2) Teeth noted as filled at entry will be service- connected if they were extracted, or if the existing filling was replaced, after 180 days or more of active service; (3) Teeth noted as carious but restorable at entry will not be service-connected on the basis that they were filled during service. However, new caries that developed 180 days or more after such a tooth was filled will be service- connected; (4) Teeth noted as carious but restorable at entry, whether or not filled, will be service- connected if extraction was required after 180 days or more of active service; (5) Teeth noted at entry as non- restorable will not be service-connected, regardless of treatment during service; (6) Teeth noted as missing at entry will not be service connected, regardless of treatment during service. In addition, 38 C.F.R. § 3.381(e) indicates specific dental conditions that will not be considered service connected for treatment purposes: (1) Calculus; (2) Acute periodontal disease; (3) Third molars, unless disease or pathology of the tooth developed after 180 days or more of active service, or was due to combat or in-service trauma; and (4) Impacted or malposed teeth, and other developmental defects, unless disease or pathology of these teeth developed after 180 days or more of active service. Finally, 38 C.F.R. § 3.381(f) provides that teeth extracted because of chronic periodontal disease will be service- connected only if they were extracted after 180 days or more of active service. Here, the veteran is requesting service connection for his dental condition under the provisions of 38 C.F.R. § 3.381(a) - by way of 38 C.F.R. § 3.310 - and he clarified during his recent September 2008 hearing that he is only requesting VA outpatient dental treatment for this condition, not compensation, inasmuch as he realizes that compensation is expressly precluded. To this end, the veteran and his representative point to several dental opinions in the record - from both VA and private dentists, confirming the eroding enamel from the veteran's teeth is traceable to his service-connected GERD. Indeed, there is repeated mention of this cause-and-effect correlation in the file. See, e.g., an April 2005 statement from O.J.C., D.D.S., an August 2005 letter from C.D.P., D.D.S., and a VA outpatient dental clinic record dated in May 1999. There is no dental opinion of record discounting this purported relationship between the eroding dental enamel and GERD, so there is only evidence supporting the claim, none against it. See McQueen v. West, 13 Vet. App. 237 (1999) (indicating, like in Wallin and Velez, surpa, that this competent medical nexus evidence is required to associate the eroding dental enamel with the service-connected GERD). Moreover, as the appropriate course of treatment, O.J.C., D.D.S., indicated in his April 2005 statement that the veteran needs several crowns and restorations to effectively treat the eroding enamel from his teeth. Consequently, this prescribed course of treatment is tantamount to that referenced in 38 C.F.R. § 3.381(a) of treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease. The Board, therefore, need not discuss the veteran's potential eligibility for this necessary VA outpatient dental treatment under the various categories of eligibility mentioned in 38 U.S.C.A. § 1712 and 38 C.F.R. § 17.161 (Classes I-VI) inasmuch as this specific determination will be made once he files his application at the outpatient dental clinic of his local VA medical center. For these reasons and bases, service connection is warranted for the eroding dental enamel secondary to the already service-connected GERD. 38 C.F.R. § 3.310(a) and (b). See also 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER For the limited purpose of receiving VA outpatient dental treatment, the claim for service connection for dental enamel erosion secondary to the service-connected GERD with hiatal hernia and history of Schatzki's Ring is granted. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs