Citation Nr: 0811457 Decision Date: 04/07/08 Archive Date: 04/23/08 DOCKET NO. 05-30 017 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for residuals of a concussion (head). 2. Entitlement to service connection for residuals of dental trauma, for the purpose of VA outpatient dental treatment. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Vavrina, Counsel INTRODUCTION The veteran had active service from March 1943 to November 1945. These matters came to the Board of Veterans' Appeals (Board) originally on appeal of January and February 2004 rating decisions in which the RO, inter alia, denied service connection for residuals of a concussion (head) and for residuals of dental trauma. In February 2005, the veteran filed a notice of disagreement (NOD) with regard to denial of the service-connection claim for residuals of a concussion (head). In August 2004, the veteran's representative filed an NOD with regard to denial of service connection for residuals of dental trauma. The RO issued a statement of the case (SOC) on both issues in July 2005. The veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in September 2005. In December 2005, the RO issued a supplemental SOC (SSOC) confirming its previous denial of the claims. In July 2006, a Deputy Vice-Chairman of the Board granted the veteran's representative's motion to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c) (2006). In August 2006, the Board remanded the appeal to the RO to clarify whether the veteran wanted a hearing before RO or Board personnel, and, if the latter, whether he desired an in-person or videoconference hearing. Although the veteran was scheduled for a hearing before RO personnel in February 2007, he later withdrew his request for any hearing, in February 2007. See 38 C.F.R. § 20.704 (2007). After the issuance of SSOCs in February 2007 and August 2007 ( reflecting the RO's continued denial of the veteran's claims. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate, to the extent possible, each claim herein decided has been accomplished. 2. There is no competent medical evidence of a current disability manifested by residuals of a claimed concussion (head). 3. The veteran does not have a dental disability due to combat wounds or other service trauma. 4. The veteran failed to apply for dental treatment benefits by December 31, 1954, as required by Pub. L. No. 83-149. CONCLUSIONS OF LAW 1. The criteria for service connection for disability claimed as residuals of concussion (head) are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). 2. The claim for entitlement to service connection for residuals of dental trauma, for the purpose of VA outpatient dental treatment, is without legal merit. 38 U.S.C.A. §§ 1110, 1712 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.381, 17.161 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2007)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini,18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. First addressing the claim for service connection for residuals of dental trauma, for the purpose of VA outpatient dental treatment, in a July 2005 SOC, the RO explained how to establish entitlement to dental benefits, notified the appellant of the reasons for the denial of his claim for dental benefits, and afforded him an opportunity to furnish information and/or evidence in support of the claim. Further, there is no indication that any evidence that bears on the claim currently under consideration is outstanding, as the dentist who treated him is deceased. Thus, the Board finds that all necessary notification and development action on this claim has been accomplished. As indicated below, the claim is being denied as lacking legal merit; as such, the duties to notify and assist imposed by the VCAA are not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). With regard to the other claim on appeal, in an August 2003 pre-rating letter, the RO provided notice to the claimant regarding what information and evidence was needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the claimant, what information and evidence would be obtained by VA, and the need for the claimant to advise VA of and to submit any further evidence that is relevant to the claim. Hence, the August 2003 letter-which meets the first three of Pelegrini's content of notice requirements-also meets the VCAA's timing of notice requirement. While the RO did not explicitly advise the claimant to provide any evidence in his possession that pertains to his claims, following the RO's instructions, the appellant indicated, in a March 2006 statement, that he had no more evidence to submit to substantiate his claims. Accordingly, on these facts, the RO's omission is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). While the RO also did not inform the claimant until an April 2006 letter of how disability ratings and effective dates are assigned, and the type of evidence that impacts those determinations, consistent with Dingess/Hartman, on these facts, such omission is not shown to prejudice the appellant. Because the Board's decision herein denies the appellant's claims for service connection for residuals of a concussion (head) and for residuals of dental trauma, neither a disability rating nor an effective date is being, or is to be, assigned. Accordingly, there is no possibility of prejudice to the appellant under the notice requirements of Dingess/Hartman. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters on appeal. Pertinent evidence associated with the claims file consists of service personnel and medical records, private medical records, and post- service treatment records from the VA Medical Center (VAMC) in Northampton, Massachusetts and the VA outpatient clinic in Springfield, Massachusetts, as well as reports of VA examinations and copies of the veteran's and his representative's statements. In summary, the duties imposed by the VCAA have been considered and satisfied. Through notice of the RO, the claimant has been notified and made aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claims on appeal. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the appellant or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters being decided, at this juncture. See Mayfield, 20 Vet. App. at 543. See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2007). Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for a disease first diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2007). The appellant asserts that he has a disability due to residuals of a concussion (head) sustained in World War II, when he was exposed to heavy artillery bombardment. He also claims that Dr. F., his former dentist, had to remove all of his teeth because of dental disease in 1947. After a full review of the record, including the medical evidence and statements made by the veteran and his representative, the Board finds that service connection for disabilities claimed as residuals of a concussion (head) and for residuals of dental trauma, for purpose of VA outpatient dental treatment, is not warranted. A. Concussion Service treatment records show that the veteran sustained an acute "contusion" to the lower back (sacroiliac region), bilateral, moderate, accidentally incurred when a shell burst near him, throwing the veteran against a tree on February 10, 1945 in Luxembourg. He was hospitalized for nearly two months before being discharged to limited duty on April 8, 1945. The veteran's November 1945 separation examination report lists under significant wounds and injuries: "concussion - back February 1945 - hospital 2 months." However, the Board notes that clinical findings for the veteran's neurological system and ears were noted as normal and no musculoskeletal defects were found on examination at that time. In response to the veteran's original claim for service connection filed in March 1946, he was afforded a VA examination. During that examination, he complained of lower back pain with prolonged standing and walking and an inability to lift anything heavy. On examination, a well- healed scar was noted on his chin; but no spinal condition was found. In a November 1946 rating decision, the RO, inter alia, denied service connection for a disability claimed as concussion of spine as not found on last examination. During a September 2003 VA examination, the veteran reported being knocked unconscious by an enemy shell on the Siegfried line, waking up in a field hospital. He stated that he sustained blown eardrums and shrapnel injuries to the right anterior lower leg. Since that time the veteran reported recurrent headaches about once a week. He denied dizziness, nausea, or vertigo. The veteran also reported cervical spine pain and tingling and mild numbness at the back of his head. On examination, he was alert and oriented and his cranial nerves were grossly intact. No balance problems were noted. His ears were within normal limits. The assessment included scar from shrapnel blast and reported concussion from explosion with blown eardrums and chronic history of headaches since that time. During a later May 2004 VA examination, the veteran reported that, while in combat a missile shell hit his helmet, causing loss of consciousness, for which he was hospitalized for five months. Since then, he has suffered from chronic headaches. The veteran claimed that he has been suffering from a head concussion since 1945; but denied suffering from a seizure disorder. He reported recurring migraines accompanied by nausea, loss of balance, and severe posterior neck pain. When attacks occur, he has to stay in bed. He averages an attack once every two days, lasting for 60 minutes. The veteran stated that he suffers from dizziness as often as once daily. On examination, cervical paravertebral muscle tenderness was noted. Examination of the cranial nerves revealed normal findings; his coordination was within normal limits. The diagnosis was x-rays consistent with degenerative disc disease at C5-C6 and C6-C7 with osteopenia. The veteran's service treatment records fail to confirm that he sustained a head concussion, that he lost consciousness, or that he was hospitalized for more than two months as reported by the veteran. Moreover, the veteran's separation examination and VA examinations within the first year after discharge from service and in 2003 and 2004 show that the veteran's neurological system was within normal limits and no diagnosed neurological disability, which the veteran claims was due to a concussion sustained while in service. The Board acknowledges that it appears that the May 2005 contract VA examiner appears to have related the veteran's cervical disc disease to the veteran's self-reported history of a head concussion sustained in service. However, the Board finds this opinion is not competent because it was not based on a review of the veteran's claims file. Instead, it was based on the veteran's unreliable history, which is not confirmed by his service treatment records or an initial VA examination within the first year after his discharge from service. In this regard, the Board notes that a December 2006 VA progress note reveals that the veteran has dementia and that, at a recent VA post-traumatic stress disorder (PTSD) examination, the examiner was unable to complete the examination due to the veteran's compromised cognitive status. Based on the above, the Board finds the veteran's self-reported history not credible. As such, there is no competent evidence of a current disability upon which to predicate a grant of service connection on any basis for disability claimed as residuals of a concussion (head), and, hence, no valid claim for service connection. See, e.g., Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinksi, 2 Vet. App 141, 144 (1992). The Board has considered the veteran's assertions and those advanced by his representative in connection with the appeal. However, as indicated above, his claim turn on the medical matter of diagnosis of current disability (and, if shown, medical etiology)-matters within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As lay persons without appropriate medical training and expertise, the veteran and his representative simply are not competent to render a probative (i.e., persuasive) opinion on a medical matter. 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 layman is generally not capable of opining on matters requiring medical knowledge). Hence, their assertions in this regard have no probative value. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as no objective or medical evidence supports the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2006); 38 C.F.R. § 3.102 (2006); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). B. Dental Specific to claims for service connection involving dental disorders, the Board notes that, under 38 C.F.R. § 3.381 (2007), treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are to be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment as provided in 38 C.F.R. § 17.161 (2007). The veteran's claim was received by the RO in May 2003. The threshold question to be answered in this case is whether or not the appellant has presented a legal claim for a VA benefit. See Sabonis v. Brown, 6 Vet. App. 426 (1994). VA regulations in effect in 1945, at the time of the veteran's discharge from service, considered Class II beneficiaries as "[t]hose having service-connected non- compensable or non-pensionable dental or oral disabilities." 38 C.F.R. § 25.6123 (1945). Class II beneficiaries were entitled to any treatment indicated as necessary for the correction of wartime or peacetime service-connected dental disabilities provided the veteran was discharged on conditions other than dishonorable on account of a disability incurred in the line of duty or is in receipt of pension for a service incurred disability 38 C.F.R. § 25.6129(b)(1) (1945). Dental prosthesis when requiring replacement through legitimate wear or deterioration will be replaced upon determination as to the present necessity of replacement as adjunct or auxiliary relief 38 C.F.R. § 25.6135 (1945). In December 1955, the pertinent regulation was amended to require that a veteran seeking Class II eligibility had to apply for treatment "within one year after discharge or release, or by December 31, 1954." This one-year limitation was first imposed by a 1957 statute which became effective on January 1, 1958. See Pub. L. No. 85-56, §§ 512, 2301, 71 Stat. 83, 112, 172 (1957). This restricted Class II treatment to a one-time completion basis and required that the application for treatment be made within one year of release from service; these provisions are contained in the current law and regulations. 38 U.S.C.A. § 1712(b)(1)(B) and (C) (West 2002); 38 C.F.R. § 17.161 (2007). However, in December 1955, 38 C.F.R. § 17.123(b) was amended to provide that a veteran seeking Class II eligibility had to apply for treatment "within 1 year after discharge or release, or by December 31, 1954." 38 C.F.R. § 17.123(b) (1956); 20 Fed. Reg. 9505 (1955). At that time, the authority for § 17.123 was Veterans Regulation No. 7(A), Exec. Order No. 6233, a very general provision entitled "eligibility for medical care." It authorized the VA Administrator (now the Secretary), "in his discretion," to furnish medical care to veterans, including "dental services." Ibid. Therefore, although the veteran was not required by statute to apply for outpatient dental treatment by December 1954, he was required to do so by 38 C.F.R. § 17.123; see also Woodson v. Brown, 8 Vet. App. 352, 355-56 (1995). The record reflects that, in 1947, the veteran received dental treatment from a private dentist (now deceased), who removed all of the veteran's teeth apparently due to advanced periodontal disease. There is no indication that the veteran had teeth that were not replaceable by suitable prosthesis. The veteran was discharged from service in 1945, and, as such, can receive treatment only with receipts of a timely- filed application. To be eligible for current dental treatment he was required to apply by December 31, 1954. As noted above, in this case, the veteran applied for VA dental benefits in May 2003. Since he has submitted no evidence to establish that he applied for outpatient dental treatment by December 31, 1954, he cannot possibly meet the requirements of § 17.123(b) as they existed in 1955 or under current law. While it is unclear whether the veteran was notified of this restriction by the appropriate service department at the time of his discharge, such notification is not required for service personnel who were discharged prior to 1982. See Woodson, 8 Vet. App. at 355. Furthermore, it is not shown that the veteran is otherwise eligible for dental outpatient treatment. The veteran may establish entitlement to indefinite VA dental treatment by establishing service connection for a compensable dental disability or service connection for a noncompensable dental disability due to combat wounds or service trauma (Class I). To establish entitlement to service connection for a tooth, the veteran must have sustained a combat wound or other in- service trauma. See 38 U.S.C.A. § 1712(c) (West 2002 & Supp. 2007); 38 C.F.R. § 3.381(b) (2007). The significance of finding that a dental condition is due to in-service trauma is that a veteran will be eligible for VA outpatient dental treatment, without being subject to the usual restrictions of a timely application and one-time treatment. 38 C.F.R. § 17.161(c) (2007). Mere dental treatment or cracking a tooth while eating is not sufficient to establish eligibility for treatment. Similarly, broken bridgework due to injury is not residuals of dental trauma because it must be the injury of a natural tooth. Further, for the purposes of determining whether a veteran has treatment eligibility, the term "service trauma" does not include the intended effects of treatment provided during the veteran's military service. VAOPGCPREC 5-97 (1997), 63 Fed. Reg. 15,556 (1997). Considering the evidence of record in light of the above- noted criteria, the Board also finds that service connection for residuals of dental trauma, for the purpose of VA outpatient dental treatment, is not warranted. Here, the veteran merely asserts that, in 1947, his dentist removed all of his teeth due to dental disease. He neither alleges that he sustained in-service dental trauma nor do his service treatment records reflect dental treatment necessitated by in-service combat wounds or other in-service trauma. On his December 1942 induction examination report, the veteran was shown as having restorable carious teeth (Nos. 4 and 5 on the right) and missing natural teeth (Nos. 6, 8 and 16 on the right and 8, 14 and 16 on the left). On his November 1945 separation examination report, the veteran was shown as having missing natural teeth (Nos. 6 and 8 on the right and 8 and 14 on the left); the examiner noted "None IV" for mouth and gum abnormalities. Moreover, the separation examination report contains numerous notations regarding other symptomatology, including relating to the mouth, but no notations regarding any dental trauma or symptoms. None of his service treatment records reflect in- service trauma to the veteran's head or teeth. The objective evidence simply does not reflect that the veteran sustained a combat wound or other in-service trauma to any tooth. Thus, the veteran is not entitled to receive VA outpatient dental treatment on a Class I basis because he does not have a compensable or noncompensable dental disability as defined by 38 C.F.R. § 4.150, that is, due to loss of substance of body of maxilla or mandible without loss of continuity, due to combat wounds or service trauma. See Simington v. West, 11 Vet. App. 41, 44 (1998). The regulations are intended to cover dental trauma involving external, sudden-force injury, such as a combat wound to the teeth and jaw. The threshold question to be answered regarding this issue is whether or not the veteran has presented a legal claim for a VA benefit. Unfortunately for the veteran, whose service is greatly admired and appreciated, he has not done so. See Sabonis, 6 Vet. App. at 430. The Board acknowledges that the RO's denial of the veteran's dental claim was premised on a different basis -- a finding that the evidence failed to demonstrate in-service combat disability (trauma) or that he had been a prisoner of war -- not the fact that he is ineligible because his application was filed after December 31, 1954. However, under the circumstances presented here, the Board finds that a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to the requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis, 6 Vet. App. at 430 (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). ORDER Service connection for residuals of a concussion (head) is denied. The claim for entitlement to service connection for residuals of dental trauma, for the purpose of VA outpatient dental treatment, is denied. ____________________________________________ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs