Citation Nr: 0812441 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 05-20 036 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for pyorrhea. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The veteran and his wife ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The veteran had active service from April 1943 to March 1946. This matter comes before the Board of Veterans' Appeals (Board) from a December 2004 rating decision by of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which denied service connection for pyorrhea. In January 2008 the veteran testified at a Travel Board hearing at the RO before the undersigned Veterans Law Judge. This case has been advanced on the Board's docket by reason of the veteran's age. 38 U.S.C.A. § 7107(a)(2); 38 C.F.R. § 20.900(c). FINDING OF FACT Pyorrhea or periodontal disease is not a disability within the meaning of applicable VA law providing compensation benefits. CONCLUSION OF LAW Service connection for pyorrhea, for compensation purposes, is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.381 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide; and to request that the claimant provide any evidence in the claimant's possession that pertains to the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The U.S. Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). If, however, VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). The U.S. Court of Appeals for the Federal Circuit has held that, if a claimant can demonstrate error in VCAA notice, such error should be presumed to be prejudicial. VA then bears the burden of rebutting the presumption, by showing that the essential fairness of the adjudication has not been affected because, for example, actual knowledge by the claimant cured the notice defect, a reasonable person would have understood what was needed, or the benefits sought cannot be granted as a matter of law. Sanders v. Nicholson, 487 F.3d 861 (Fed. Cir. 2007); petition for cert. filed (U.S. March 21, 2008) (No. 07-1209). In October 2004 and October 2005, the RO sent the veteran letters informing him of the types of evidence needed to substantiate his claim and its duty to assist him in substantiating his claim under the VCAA. These letters informed the veteran that VA would assist him in obtaining evidence necessary to support his claim, such as records in the custody of a Federal department or agency, including VA, the service department, the Social Security Administration, and other pertinent agencies. He was advised that it was his responsibility to send medical records, or to provide a properly executed release so that VA could request the records for him. He was also specifically asked to provide to provide any evidence in his possession that pertained to his claim. See 38 C.F.R. § 3.159(b)(1). The Board finds that the content of the October 2004 and October 2005 letters provided to the veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist. He was advised of his opportunities to submit additional evidence. A May 2005 SOC and SSOCs dated in April 2006 and November 2006 provided him with additional time to submit more evidence. Thus, the Board finds that the purpose behind the notice requirement has been satisfied, because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. With regard to a VA examination, the Board notes that such an examination is not necessary in order for a decision to be made on the claim. The pertinent laws and regulations provide that a medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, and such evidence could support a claim for compensation. 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159(c)(4). However, in this case, service connection may only be granted for pyorrhea for purposes of dental treatment, and this has already been done by the RO. Thus, a VA examination would not aid the Board in any decision making on the present claim, and consequently, a VA examination is not necessary. In addition, it appears that all obtainable evidence identified by the veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is therefore the Board's conclusion that the veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. Moreover, the veteran has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error does not arise. See Sanders, supra. Accordingly, we find that VA has satisfied its duty to assist the veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Therefore, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the veteran. The Court of Appeals for Veterans Claims has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In addition, to whatever extent the recent decision of the Court in Dingess v. Nicholson, supra, requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Board finds no prejudice to the veteran in proceeding with the present decision. The veteran was notified of the information required by the Dingess decision by letter dated in March 2006. Moreover, since the claim herein is being denied, such matters are moot. II. Factual Background A March 1947 dental examination and treatment record shows that the veteran was found to have moderate pyorrhea, and he underwent treatment for pyorrhea in October and November 1947. By February 1948 rating decision, the San Diego RO determined that the veteran's pyorrhea was incurred during his wartime service, and granted service connection for pyorrhea. By March 1949 rating decision, the San Diego RO confirmed that the veteran's pyorrhea was incurred during his wartime service and granted service connection for pyorrhea, clarifying that it was for purposes of outpatient treatment only. Received from the veteran in September 2004 was a formal claim for service connection for pyorrhea. In a February 2005 letter, accepted as his Notice of Disagreement, the veteran reported that he contracted pyorrhea during his World War II service, and that he went to the battalion medic periodically for treatments, which consisted of swabbing his bleeding gums with a purple fluid. He contended that his oral specialists have indicated that the fever in the gums which accompanies pyorrhea causes adjacent bone to recede from the teeth and roots. In February 2006, the veteran testified at an RO hearing that he was seeking compensation for his pyorrhea essentially because he needed dental treatment which VA was unable to do, and which would be expensive to pay for in the private sector. He said he had been going to Mexico for dental treatment because that was less expensive. In support of his claim, the veteran submitted an April 2006 buddy statement from a fellow servicemember, N.A., who reported that he, the veteran, and several other members of their company came down with pyorrhea while in service in France. The veteran also submitted a letter dated in January 1999 from a private dentist, showing that he had generalized moderate to advanced periodontis, characterized by a history of scaling and root planing. In a February 2007 letter, J.M.C., D.D.S., the veteran's private dentist from Mexico, reported that the veteran had been seen in February 2000 with a complaint of loose lower jaw teeth, and an X-ray and clinical evaluation revealed severe bone loss and excessive mobility of three teeth. He had several teeth pulled and replaced with titanium post implants. He had returned annually for checkups and necessary maintenance. In January 2008, the veteran testified at his Travel Board hearing that he had first noticed symptoms of gum disease while in France in 1944 when his gums started to bleed, and that these symptoms continued throughout service. He first sought treatment after service in 1950. He testified that he had bone loss and loose teeth as a result of pyorrhea, and that after his upper teeth and most of his lower teeth were pulled out, there were problems with inserting posts and implants, due to severe bone loss. He claimed he went to Mexico to have oral surgery done because it was less expensive. He testified that his gums and teeth required much repair and maintenance. III. Analysis Under the applicable criteria, VA 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 or loss of a portion of the mandible or maxilla. Periodontal disease (pyorrhea) is not a disabling condition subject to compensation under VA laws, and may be considered service-connected solely for the purpose of determining entitlement to dental examinations or outpatient dental treatment under 38 C.F.R. § 17.161. See 38 C.F.R. § 3.381(a). The veteran contends that he should be entitled to service connection for pyorrhea for VA compensation purposes. The record reflects that service connection was granted for pyorrhea in February 1948, for treatment purposes only. The veteran has acknowledged that service connection was granted for pyorrhea for treatment purposes only, but essentially maintains that VA is unable to provide the necessary treatment for his ongoing pyorrhea related dental problems, and therefore, he seeks VA compensation related to his pyorrhea. The Board concludes, however, that there is no basis under the law for the award of service-connected VA disability compensation for the veteran's pyorrhea. Such condition is not eligible for VA compensation and does not fall under the categories of compensable dental conditions set forth in 38 C.F.R. § 4.150. 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 under the law, that doctrine is not applicable. 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990); Sabonis, supra. The Board appreciates the forthright and sincere testimony by the veteran and his wife at the hearing before the undersigned, as well as the assistance of his representative. ORDER Service connection for pyorrhea is denied. ________________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs