Citation Nr: 0811516 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 05-04 287 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a dental condition or disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David Ganz, Associate Counsel INTRODUCTION The veteran had active military service from September 1943 to November 1946, and from September 1950 to September 1952. This matter comes to the Board of Veterans' Appeals (Board) from a January 2004 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Waco, Texas, which denied entitlement to service connection for residuals of a fractured jaw. Supplemental statements of the case dated in June 2005 and December 2005 recharacterized the issue on appeal as entitlement to service connection for residuals, fractured jaw now claimed as a dental injury. A Request for Administrative and Adjudicative Action dated in August 1953 reflects that the veteran made a claim for outpatient dental treatment for abscesses at the roots of three lower teeth and the replacement of missing fillings. It is not clear whether the RO treated this as a claim for service connection. The veteran testified at a Decision Review Officer (DRO) hearing at the RO before a DRO in May 2005. A transcript of the hearing is of record. The issue has been re-characterized to comport with the evidence of record. At his May 2005 hearing the veteran testified that he is not claiming service connection for any jaw injury in and of itself, but rather a dental injury. Specifically, the veteran testified that he wanted to have two missing teeth replaced. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The veteran seeks service connection for a dental condition or disorder. At his May 2005 hearing the veteran testified that in the summer of 1943 he was involved in an automobile accident at Fort Sill, Oklahoma. During the accident the veteran's mouth was injured, and he was taken to the infirmary. The doctor examined him and told the veteran that it looked like a hairline fracture. The inside of the veteran's mouth was stitched up. In 1951, the veteran went to the dental clinic because his lower jaw hurt. A root canal was performed on two or three of the veteran's lower front teeth and the surgeon told him that it was very probably the case that the veteran's earlier injury from the automobile accident caused the dental problem that was treated by the root canal. The veteran also testified that the surgeon told him that he may have trouble with some of the teeth adjacent to the one's that root canals were performed on because of the trauma from the automobile accident. The veteran noted that a number of years later he lost the teeth that were adjacent to the area that was traumatized and where the oral surgeon did the root canals. Under current VA regulations, compensation is only available for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla. Compensation is available for loss of teeth only if such is due to loss of substance of body of maxilla or mandible. 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 (2007); 38 C.F.R. §§ 3.381, 17.161 (2007). 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) (2007). The classes of eligibility for dental treatment are set forth in 38 C.F.R. § 17.161. See 38 U.S.C. § 1712. Only three of those classes are potentially applicable in this case, and they are listed below. With reference to Class I, those having a service-connected compensable dental disability or condition may be authorized dental treatment as necessary to maintain oral health and masticatory function. 38 C.F.R. § 17.161(a). With reference to the Class II criteria, a veteran who has a service-connected, noncompensable dental condition or disability shown to have been in existence at time of discharge or release from active service, may, under certain specified conditions, utilize outpatient dental services and treatment. 38 C.F.R. § 17.161(b). Finally, under Class II (a) criteria, dental treatment may be provided for a service-connected noncompensable dental condition which resulted from combat wounds or other service trauma. 38 C.F.R. § 17.161. VA dental treatment records dated in July 2005 indicate that the veteran is missing teeth numbered 1, 16, 17, 18, 21, 27, and 32. VA dental treatment records dated in August 2005 indicated that planned procedures for the veteran included lower mandible dentures. Service medical records (SMRs) dated in June 1952 indicate that the veteran had L-12 root canal and fistulas between L- 11 and L-12 procedures. They do not show, however, that the veteran was treated for an injury resulting from an automobile accident during service. The current record contains competent evidence of a current disability or disabilities with respect to the veteran's teeth, credible evidence establishing an in-service injury, specifically the automobile accident in the summer of 1943, and evidence of in-service dental treatment. However, there is insufficient medical evidence for the Board to decide the veteran's claims. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); See also U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (c) (2007). The appellant is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158 and 3.655 (2007). Accordingly, the case is REMANDED for the following action: 1. Schedule the veteran for VA dental examination to determine the nature of any dental condition(s) or disorder(s) that the veteran may have, including any condition(s) or disorder(s) relating to missing teeth numbered 1, 16, 17, 18, 21, 27, and 32. If any condition(s) or disorder(s) are found, the examiner must provide an opinion as to whether it is at least as likely as not that any currently identified dental condition (regardless of whether or not it is considered to be a current disability) or disorder affecting any of the veteran's teeth (whether missing or present) are related to the veteran's reported traumatic automobile incident that resulted in a jaw injury in the summer of 1943. The examiner is also asked to provide an opinion as to whether it is at least as likely as not that the veteran has a dental condition or disorder shown to have been in existence at time of discharge or release from active service. The claims folder must be made available to the examiner for review in conjunction with the examination. The examiner must address the veteran's contention that an injury to his jaw occurred in the summer of 1943 and that in 1951 a surgeon told him that he may have trouble with some of the teeth adjacent to the those that root canals were performed on because of the trauma from the automobile accident. A detailed rationale for all medical opinions must be provided. 2. Thereafter, if necessary, any additional development deemed appropriate should be accomplished. The claim should then be readjudicated. If the claim remains denied, the RO should issue a supplemental statement of the case (SSOC) containing notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal, and allow an appropriate period of time for response. The appellant has the right to submit additional evidence and argument on the matter 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. 2007). _________________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).