Citation Nr: 0812143	
Decision Date: 04/11/08    Archive Date: 04/23/08

DOCKET NO.  04-00 747	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, 
Colorado


THE ISSUE

Entitlement to service connection for periodontal disease, 
with loss of teeth, for the purposes of compensation and VA 
outpatient dental treatment.  



REPRESENTATION

Appellant represented by:	Virginia Department of 
Veterans Services



ATTORNEY FOR THE BOARD

L. J. Vecchiollo, Counsel




INTRODUCTION

The veteran served on active duty from November 1988 to 
January 1999.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a December 2002 rating decision issued 
by the Department of Veterans Affairs (VA) Regional Office 
(RO) in Denver, Colorado.

The Board remanded the claim to the RO in May 2005 for 
further development and consideration. 


FINDINGS OF FACT

1.  The veteran does not have a dental condition or 
disability, to include periodontal disease or extracted 
teeth, as a result of combat wounds or other trauma during 
her active military service.  

2.  The veteran, who was discharged from service in January 
1999, was not notified of the need to apply for VA dental 
treatment within 90 days of discharge from service.


CONCLUSIONS OF LAW

1.  The criteria for entitlement to service connection for 
periodontal disease, with loss of teeth, for compensation 
purposes, have not been met.  38 U.S.C.A. §§ 1110, 1131, 
1721, 5103, 5103A, 5107 (West & Supp. 2007); 38 C.F.R. §§ 
3.303, 3.381, 4.150, 17.161 (2007).

2.  The veteran is eligible for VA outpatient dental (Class 
II) treatment on a one-time completion basis.  38 U.S.C.A. §§ 
1110, 1131, 1721, 5103, 5103A, 5107 (West & Supp. 2007); 38 
C.F.R. §§ 3.381, 17.161 (2007).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

A. Duties to Notify and Assist

Upon receipt of a complete or substantially complete 
application, VA must notify the claimant of the information 
and evidence not of record that is necessary to substantiate 
a claim, which information and evidence VA will obtain, and 
which information and evidence the claimant is expected to 
provide.  38 U.S.C.A. § 5103(a).  VA must request that the 
claimant provide any evidence in the claimant's possession 
that pertains to a claim.  38 C.F.R. § 3.159.

The notice requirements apply to all five elements of a 
service connection claim: 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.  Dingess v. Nicholson, 19 Vet. App. 
473 (2006).

The notice must be provided to a claimant before the initial 
unfavorable adjudication by the RO.  Pelegrini v. Principi, 
18 Vet. App.112 (2004).

The notice requirements may be satisfied if any errors in the 
timing or content of such notice are not prejudicial to the 
claimant.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005), 
rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).  

The RO provided the appellant pre-adjudication notice by 
letter dated in October 2002.

The notification substantially complied with the requirements 
of Quartuccio v. Principi, 16 Vet. App. 183 (2002), 
identifying the evidence necessary to substantiate a claim 
and the relative duties of VA and the claimant to obtain 
evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004), 
requesting the claimant to provide evidence in his or her 
possession that pertains to the claims.  

The notification did not advise the veteran of the laws 
regarding degrees of disability or effective dates for any 
grant of service connection.  However, no new disability 
rating or effective date for award of benefits will be 
assigned as the portion of the dental claim relating to 
service-connected compensation is denied.  In addition, the 
grant of one-time VA dental outpatient treatment does not 
entail the assignment of either a rating or an effective 
date.  Accordingly, any defect with respect to that aspect of 
the notice requirement is rendered moot.  See Bernard v. 
Brown, 4 Vet. App. 384, 394 (1993). 

VA also has a duty to assist the veteran in obtaining 
evidence necessary to substantiate the claim.  38 U.S.C.A. § 
5103A; 38 C.F.R. § 3.159(c).  The record reflects that the RO 
obtained, or the veteran submitted, the veteran's service 
medical records, and post-service medical records identified 
by the veteran.  She was provided an opportunity to be 
scheduled for a VA dental examination, but she stated that 
she is in poor health and that there was enough evidence of 
record for the VA to make a favorable decision on the claim.  
As such, the record is sufficient for a decision.

The Board finds no prejudice to the veteran in proceeding 
with the issuance of a final decision on this claim.  See 
Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

B.  Analysis

The veteran has asserted that on May 31, 1989, during 
service, she underwent major surgery in which all but six 
teeth were removed.  She maintains that such extractions 
caused bone trauma and therefore, she is entitled to 
compensation due to the trauma and she should be given VA 
outpatient dental treatment (new dentures).  

A review of her dental records from service indicate that she 
was hospitalized on May 30, 1989 and that she was treated in 
regard to teeth #1-14, 16, 23-26, and 29 on the following 
day.  On May 22, 1989, she underwent periodontal surgery on 
teeth #18, 20-22, 27, 28, and 31.  It is not clear what 
exactly this treatment entailed or whether any extractions 
from those dates resulted from the veteran's well-documented 
periodontal disease.  

On dental examination in April 1989, it was noted that the 
veteran had severe periodontal disease approximate 50 percent 
bone loss of teeth, and required extensive dental treatment, 
and was referred for prosthetic evaluation.  The April 1989 
dental chart noted that Teeth number 1-10, 16, 23-26, and 29 
were found to be non-restorable (designated by the drawing of 
two vertical lines through the tooth).  Teeth number 14, 18, 
19, 30, and 31 were found to have been missing (designated by 
the drawing of an "X" through the tooth). 

From May 22, 1989 and May 31, 1989, all remaining upper teeth 
were extracted, lower Teeth number 23-26, and 29 were 
extracted, and the she was fitted with full upper and a 
partial lower denture.  

Missing teeth may be compensable for rating purposes under 
Diagnostic Code 9913 ("loss of teeth, due to loss of 
substance of body of maxilla or mandible without loss of 
continuity").  However, the Note immediately following 
states, "these ratings apply only to bone loss through trauma 
or disease such as osteomyelitis, and not to the 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.  There is no evidence of record that 
the veteran's loss of teeth is the result of loss of 
substance of body of maxilla or mandible.  In fact, she has 
been fitted with dentures.  Therefore, the veteran does not 
have a service-connected compensable dental disability or 
condition (Class I).  See 38 C.F.R. § 17.161(a).

The veteran has not presented any competent evidence that she 
has a dental disorder for which service-connected 
compensation may be granted.

VA outpatient dental treatment is also granted to those 
having a noncompensable service-connected dental condition 
adjudicated as resulting from a combat wound or other service 
trauma (Class II(a) eligibility).  38 U.S.C.A. § 1712; 38 
C.F.R. § 17.161.  The significance of establishing service 
connection for a dental condition, based on service trauma, 
is that a veteran will be eligible to receive perpetual VA 
dental care for the condition.  38 U.S.C.A. § 1712(a)(1)(C); 
38 C.F.R. § 17.161(c).  To have had dental extractions during 
service is not tantamount to dental trauma, because trauma of 
teeth, even extractions, in and of itself, does not 
constitute dental trauma.  VAOPGCPREC 5-97, 62 Fed. Reg. 
15,566 (1997).  The veteran does not contend, nor does the 
record indicate, that she experienced any incident which 
would constitute dental trauma in service under VA law.  
Therefore, the veteran does not have a service-connected, 
non-compensable dental condition or disability resulting from 
combat wounds or service trauma (Class II(a)).  38 C.F.R. § 
17.161(c).  

The evidence does not demonstrate that the veteran can avail 
himself of any of the following categories by which VA dental 
treatment can be provided.  Class II(b) and Class II(c) 
require that the claimant be a prisoner of war, a status not 
accruing to the veteran.  See 38 C.F.R. § 17.161(d), (e).  
Class IIR (Retroactive) eligibility requires that a prior 
application for VA dental treatment have been made and such 
treatment provided.  See 38 C.F.R. § 17.161(f).  Review of 
the record does not show that the veteran had sought VA 
dental treatment prior to the current claim.  There is no 
evidence demonstrating that the veteran has a dental 
condition that impairs or aggravates a service-connected 
disability (Class III).  See 38 C.F.R. § 17.161(g).  The 
veteran's service connected disabilities are not rated as 100 
percent disabling by schedular evaluation or due to 
individual unemployability (Class IV), nor is she a Chapter 
31 vocational rehabilitation trainee (Class V).  See 38 
C.F.R. § 17.161(h), (i).  She is also not receiving, or is 
scheduled to receive, VA care and treatment under 38 U.S.C.A.  
Chapter 17 (Class VI).  See 38 C.F.R. § 17.161(j).

Veterans having a service-connected noncompensable dental 
condition or disability shown to have been in existence at 
the time of discharge or release from active service, which 
took place after September 30, 1981, (as in this case) may be 
authorized any treatment indicated as reasonably necessary 
for the one-time correction of the service- connected 
noncompensable condition, but only if: (A) The veteran served 
on active duty during the Persian Gulf War and were 
discharged or released, under conditions other than 
dishonorable, from a period of active military, naval, or air 
service of not less than 90 days, or they were discharged or 
released under conditions other than dishonorable, from any 
other period of active military, naval, or air service of not 
less than 180 days; (B) Application for treatment is made 
within 90 days after such discharge or release; (C) The 
certificate of discharge or release does not bear a 
certification that the veteran was provided, within the 90-
day period immediately before such discharge or release, a 
complete dental examination (including dental X-rays) and all 
appropriate dental treatment indicated by the examination to 
be needed; and, (D) VA dental examination is completed within 
six months after discharge or release, unless delayed through 
no fault of the veteran. 

38 C.F.R. § 17.161(b)(1)(i).  

Review of the service dental records shows that the veteran 
received significant dental treatment in service.  However, 
there is no indication that the veteran received a complete 
dental examination and all appropriate dental treatment 
indicated by the examination prior to separation from 
service.  The record also does not indicate that the veteran 
was notified of her options regarding VA dental treatment, 
including the need to apply for VA outpatient dental 
treatment on a timely basis.  If there is no indication of 
such notification, the 90-day time limit does not begin.  
Mays v. Brown, 5 Vet. App. 302, 306.

Under these circumstances, service connection for VA 
outpatient dental treatment on a one-time completion basis is 
warranted.  To this extent, the appeal is granted.  38 C.F.R. 
§ 17.161(b)(1)(i).


ORDER

Entitlement to service connection for a dental disorder for 
the purposes of compensation is denied.

Eligibility for VA outpatient dental (Class II) treatment on 
a one-time completion basis is granted.



____________________________________________
RONALD W. SCHOLZ 
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs