Citation Nr: 0710859 Decision Date: 04/12/07 Archive Date: 04/25/07 DOCKET NO. 01-03 148 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for a dental condition, claimed as secondary to radiation therapy for service- connected cancer of the larynx. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The veteran served on active duty from March 1968 to February 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In a rating decision dated in April 2000 the RO, in pertinent part, denied service connection for PTSD, neck spasms and a dental condition. The veteran disagreed with those determinations and perfected his appeal as to those claims. In his substantive appeal, he argued that he had many stressors in Vietnam and stated that his neck spasms and claimed dental condition were secondary to radiation treatment for his service-connected cancer of the larynx. The veteran testified at an August 2001 RO hearing before a Decision Review Officer. At the August 2001 hearing, the veteran testified that he lost a tooth in service in a fight that ensued after another serviceman "bashed" him in the back of the head with a full C-ration unit. He said the tooth was rammed though his lip, requiring stitches, and that "the tooth was gone - removed one or two teeth at the time." By his hearing testimony the veteran expanded the dental claim to include dental trauma in service. Although the RO addressed dental trauma in service as well as radiation effects in its November 2002 supplemental statement of the case, it is not clear that the dental trauma claim is in appellate status. In this regard, the Board notes that the record includes a November 1978 dental rating sheet in which entitlement to VA outpatient dental treatment was denied. On that rating sheet, the rating board remarked there was no evidence of trauma to teeth from available dental records. In an October 2003 remand that requested additional development of the issues on appeal, the Board also referred the dental trauma matter to the RO in order to establish whether the veteran received notice of the November 1978 determination and whether he was informed of his appellate rights at that time. The RO was asked to make an initial determination as to the finality of the November 1978 determination and, if appropriate, inform the veteran of the requirements for reopening a previously denied claim and thereafter determine whether new and material evidence has been received to reopen the claim. Unfortunately, it does not appear that this was accomplished. Accordingly, the RO is once again asked to make an initial determination as to the finality of the November 1978 determination and, if appropriate, inform the veteran of the requirements for reopening a previously denied claim and thereafter determine whether new and material evidence has been received to reopen the claim. In June 2006, the RO granted service connection for recurrent spasm of the neck (right sternocleidomastoid muscle). As this is considered a full grant of the benefit sought, the issue of entitlement to service connection for neck spasms is no longer on appeal. The Board noted in its October 2003 remand that the issue of entitlement to service connection for depression, to include as secondary to service-connected cancer of the larynx, had not been perfected and remanded the matter to the RO for the issuance of a statement of the case. See 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). The record shows that the RO issued the veteran a statement of the case regarding this issue in August 2006, but there is no substantive appeal on file. Therefore, this claim has not been perfected and will not be further addressed. See 38 C.F.R. § 20.200. The issue of entitlement to service connection for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The weight of medical evidence establishes that the veteran does not have a dental condition related to his service- connected cancer of the larynx. CONCLUSION OF LAW The criteria for service connection for a dental disability, claimed as secondary to service-connected cancer of the larynx, are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The United States Court of Appeals for Veterans Claims' (Court's) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, the RO initially furnished VCAA notice to the veteran in March 2001 which was after the April 2000 rating decision on appeal. Because the VCAA notice in this case was not provided to the appellant prior to the RO decision from which he appeals, it can be argued that the timing of the notice does not comply with the express requirements of the law as found by the Court in Pelegrini. While the Court did not address whether, and, if so, how, the Secretary can properly cure a defect in the timing of the notice, it did leave open the possibility that notice error of this kind may be non-prejudicial to a claimant. In this respect, all the VCAA requires is that the duty to notify is satisfied, and that appellants be given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). VA has fulfilled its duty to notify the appellant in this case. In the March 2001 letter as well as a March 2004 letter, the November 2000 statement of the case, and November 2002 and August 2006 supplemental statements of the case, the RO informed the appellant of the applicable laws and regulations, including applicable provisions of the VCAA, the evidence needed to substantiate the claim, and which party was responsible for obtaining the evidence. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In the 2001 and 2004 letters, VA informed the appellant that it would obtain the available records in the custody of federal departments and agencies and request medical records from identified private health care providers. VA also informed the veteran to send copies of any relevant evidence he had in his possession and that he could also get any relevant records himself and send them to VA. Thus, the Board finds that VA's duty to notify has been fulfilled and any defect in the timing of such notice constitutes harmless error. During the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service- connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman, supra. The first three elements were provided in the information noted above and, with regard to elements four and five, the appellant was given notice of these in an August 2006 letter. Moreover, any notice defect, regarding the disability rating and effective date, is harmless error since no disability rating or effective date will be assigned regarding the claim for service connection for a dental condition as secondary to radiation treatment for service- connected cancer of the larynx. The Board also finds that all necessary assistance has been provided to the appellant. The RO has made reasonable and appropriate efforts to assist the appellant in obtaining the evidence necessary to substantiate this claim, including requesting VA and private medical records identified by the appellant. In addition, the appellant was afforded VA examinations during the appeal period and was provided with the opportunity to attend a hearing which he attended before a Decision Review Officer (DRO) in August 2001. The appellant has not indicated that any additional pertinent evidence exists, and there is no indication that any such evidence exists. Under these circumstances, the Board finds that VA has fulfilled its duty to notify and assist the appellant in the claim under consideration and that adjudication of the claim at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993). This issue is now ready to be considered on the merits. II. Facts The veteran's active duty service from March 1968 to February 1970 included a tour of duty in Vietnam. A private pathology report dated in August 1994 from H. Lee Moffitt Cancer Center and Research Institute diagnosed the veteran as having invasive squamous cell carcinoma, poorly differentiated with marked nuclear anaplasia and high mitotic rate. A New Patient Consultation report from H. Lee Moffit Cancer Center and Research Institute in August 1994 notes that the veteran had to have several teeth extracted. This report also notes that several treatment options were explained to the veteran for his advanced larynx cancer. On file is an October 1994 letter from A. M. Trotti, M.D., stating that the veteran was presently undergoing radiation therapy for squamous cell carcinoma of the larynx. In a July 1995 rating decision, the RO granted the veteran's claim for service connection for squamous cell carcinoma of the larynx as secondary to exposure to herbicides. A January 1996 follow-up record from H. Lee Moffit Cancer Center and Research Institute shows that the veteran had some caries in his oral cavity and was "admonished" to get dental care. An April 1996 record again states that the veteran needed to have care on his carious teeth and explained that he had neglected to do so because of his depression. A VA examination report dated in October 1997 notes that the veteran underwent 35 radiation treatments. It also reflects the veteran's report that he had had trouble with his bottom teeth ever since the radiation treatment. A January 1998 follow-up note from the Department of Radiology at H. Lee Moffit Cancer Center and Research Institute shows that intra oral exam revealed no lesions of the oral cavity or oropharynx. It also shows that the veteran had several teeth in poor condition and states that "[p]art of [the veteran's] condition may be secondary to the partial xerostomia secondary to radiation." In July 1998, the veteran filed a claim for service connection for a dental condition which he claimed was secondary to the partial xerostomia for cancer of the larynx. In April 1999, the veteran was evaluated by a VA dentist. Findings included missing teeth numbers 1, 5, 16-18, 23-25 and 31-32; dental fillings to teeth numbers 3, 4, 12-15, and 20; and crowns on teeth numbers 19, 29 and 30. Attached to this evaluation report is a report from the VA dentist who examined the veteran. He reported that salivary production appeared normal and there was no evidence of xerostomia. He said that the shifting of the veteran's teeth was reported as far back as May 1976 and that deterioration of the veteran's teeth had been addressed in an April 1996 report from H. Lee Moffit Cancer Center and Research Center. He said the report noted that the veteran had neglected to take care of his carious teeth because of his depression. An April 1999 VA examination report shows that the veteran underwent 35 radiation treatments for carcinoma of the larynx, squamous cell, which he completed in October 1994. During the examination the veteran complained of dry mouth and throat. The examination report does not include examination findings. The examiner said that the disabilities the veteran was claiming secondary service connection for due to radiation therapy included mild subcutaneous xerostomia. He opined that it was as likely as not that the findings were secondary to his radiation therapy for squamous cell carcinoma of the larynx. The veteran asserted in the June 2000 notice of disagreement that a dental condition could be a secondary condition from the radiation that he received for his cancer. He referred to reports from the Moffit Cancer Center dated in January 1998 for supportive evidence. The veteran testified during an August 2001 DRO hearing that his real severe tooth problems are due to radiation treatment. He said that when he was ordered to have radiation, he had teeth that needed work that had to be pulled. He said that those teeth included four molars and two front teeth. He explained that he also had to have four or five root canals performed and all this had to be done prior to his radiation treatment in order to "get them out of the field of radiation." He said his teeth could not be pulled after radiation because of concern that the bleeding may not stop. The veteran asserted that the dental work that was done changed the structure of his jawbone. He further noted that he had problems opening his jaw all the way. An April 2006 VA dental examination report shows that the veteran believed that his radiation therapy may have affected his dentition, but that he fully admitted that his poor dental hygiene and ineffective cleansing of his teeth were the major cause of what existed presently. Based on an examination and review of the veteran's claims file, the examiner diagnosed the veteran as having rampant dental caries (decay) secondary to poor oral hygiene, generalized chronic moderate periodontitis Type III with localized advanced periodontitis secondary to poor oral hygiene, and adequate salivary flow, and presence of facial hair over maxillae and mandible. The examiner opined that "it is not likely" that the veteran's present dental condition is the result of the radiation therapy. He first pointed out that the port used to direct the radiation beam to the larynx barely affected the salivary glands as the veteran had more than adequate saliva on examination. He explained that salivary glands were quite radiosensitive and when the salivary glands are in the radiation port, they are the first to atrophy, never to heal or return to salivary production intraorally again. He also noted that the veteran had facial hair below the lower edge/border of the mandible including the parotid areas in front of the ear, strongly suggesting that the ports for radiation did not involve the jaws at all. He went on to note that the evidence suggested that a high port, which often causes atrophy of the parotid glands, was not used. In addition, the examiner stated that there was strong evidence that dental neglect since the time the veteran was in the military had been exhibited by the veteran and that neglect predisposed him to his present state of oral health. He opined that it was "likely" that the veteran's oral condition was directly a result of inadequate oral hygiene, lack of professional care and dental neglect. He said it was "not likely" that the radiation contributed in any way other than a temporary decrease in salivary flow (as related by the veteran), but not the cause of his present condition. III. Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. The law further provides 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). Service connection may also be granted for disability proximately due to or the result of a service-connected disorder and where aggravation of a nonservice-connected disorder is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 (West 2002). The veteran contends that he suffers from a dental disability as a result of radiation therapy for his service-connected cancer of the larynx. He asserts, in part, that he has had problems with his bottom teeth ever since the radiation therapy. However, the evidence shows that the veteran had four teeth pulled prior to undergoing radiation treatment. Thus, the losses of these teeth are not proximately related to the radiation therapy since they were extracted prior to the veteran undergoing radiation therapy. In addition, the weight of medical evidence dated after the radiation treatment in 1994 does not proximately relate the veteran's dental problems to such treatment, but rather to poor dental hygiene and dental neglect. In this regard, there is the January 1996 follow-up record from H. Lee Moffit Cancer Center and Research Institute noting that the veteran had some caries in his oral cavity and "admonishing" him to get dental care. There is also an April 1996 record again stating that the veteran needed to have care on his carious teeth and noting that he had neglected to do so based on his depression. Moreover, regarding the cause of the veteran's teeth deterioration, the April 1999 VA dentist referred to the April 1996 record which notes neglect as the basis. Consideration has been given to the January 1998 private record from the Department of Radiology that notes that the veteran had on examination several teeth in poor condition and that "[p]art of [the veteran's] condition may be secondary to the partial xerostomia secondary to radiation." The veteran specifically refers to this record to support his claim. However, this examiner did not have access to the veteran's medical records, some of which relate the veteran's poor dental health to dental neglect. Moreover, his opinion that the veteran's dental condition "may be" secondary to partial xerostomia secondary to radiation is speculative in nature and not accompanied by examination findings. In addition, it is not consistent with an April 1999 VA dental examiner's finding that the veteran's salivary production appeared normal and there was no evidence of xerostomia. In contrast to the speculative opinion of the January 1998 examiner, there is the April 2006 VA dental examiner's opinion that it "is not likely" that the veteran's present dental condition is a result of the radiation therapy. He explained that the port used to direct the radiation beam to the larynx barely affected the salivary glands as the veteran had more than adequate saliva upon examination that day. He also noted that there was strong evidence that dental neglect since service predisposed him to his present state of dental health. The examiner concluded that it was "not likely" that the radiation contributed in any way other than a temporary decrease in salivary flow (as related by the veteran), but not the cause of his present condition. The Board does not doubt the veteran's sincere belief that he has a dental condition secondary to radiation therapy for his service-connected larynx cancer. However, as a layperson without the appropriate medical training and expertise, he simply is not competent to offer a probative opinion on medical matters. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Based on the foregoing, the weight of medical evidence is against the veteran's claim for service connection for a dental condition, as secondary to radiation therapy for service-connected cancer of the larynx. Accordingly, the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the- doubt doctrine. However, as the preponderance of the evidence is against the veteran's claim, that doctrine does not apply. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a dental condition, as secondary to radiation therapy for service-connected cancer of the larynx, is denied. REMAND Regarding the veteran's claim of entitlement to service connection for PTSD, the veteran reported a stressor involving the death of a Sergeant Smith from non-hostile related injuries in a grenade accident in May 1969. The National Personnel Records Center (NPRC) was able to verify the death, but reported that it occurred on a date after the veteran's discharge from service, in April 1970. The NPRC further reported that Morning Reports, DA Form 1, could be used to verify daily personnel actions such as unit casualties or transfers. Accordingly, in an attempt to verify the discrepancy with respect to the date of this stressor, the Board in its October 2003 remand requested that the Morning Reports, DA Form 1, be obtained. The record shows that two attempts have been made to obtain the morning reports from the NPRC. A request for these reports was made in March 2004 and again in May 2005. The NPRC responded on both occasions that additional information was needed to obtain these reports. More specifically; the NPRC informed VA that the company the veteran was in while serving with his unit (198th Infantry Brigade, 6th Infantry, 1st Battalion) when the stressor occurred was needed. Unfortunately, it does not appear from the claims file that an attempt was ever made to identify the company that the veteran served in. In Stegall v. West, 11 Vet. App. 268 (1998), the United States Court of Appeals for Veterans Claims (Court) held that a remand by the Board confers, as a matter of law, the right to compliance with the remand instructions. In this case, the Board finds that the instructions for further development (in particular, the Board's request that the Morning Reports, DA Form 1, from the veteran's assigned unit be obtained) set forth within the October 2003 Board remand have not been met with full compliance that would allow the Board to render a fair and equitable decision. While the Board regrets that a second remand of this matter will further delay a final decision on appeal, the Board finds that a remand to the RO is necessary to ensure that all due process requirements are met. Accordingly, the case is REMANDED for the following action: 1. Contact the veteran and ask him to provide the name of the company he was in while serving with the 198th Infantry Brigade, 6th Infantry, 1st Battalion, in May 1969. The RO should document this request. 2. If the veteran provides the name of the company he was in, order Morning Reports, DA Form 1, submitted by the 198th Infantry Brigade, 6th Infantry, 1st Battalion for May 1969 from the Director, National Personnel Records Center, ATTN: NCPMR-O, 9700 Page Avenue, St. Louis, MO 63132. Be sure to include the company that the veteran served in with this request. 3. After completion of the above and any additional development of the evidence which may be deemed necessary, to include affording the veteran another examination if deemed necessary with respect to resolving the PTSD issue, review the record and determine if the claim of entitlement to service connection for PTSD can be granted. The veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board. The appellant and his representative have the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs