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