Citation Nr: 0813518 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 05-30 371 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to service connection for low back disability. 2. Entitlement to service connection for disability manifested by shortness of breath. 3. Entitlement to service connection for stomach/intestine disability. 4. Entitlement to service connection for motion sickness. 5. Entitlement to service connection for dental disability for compensation purposes. REPRESENTATION Appellant represented by: Fleet Reserve Association ATTORNEY FOR THE BOARD J. N. Moats, Associate Counsel INTRODUCTION The veteran had over 20 years of active duty service ending with his retirement in April 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in June 2005, a statement of the case was issued in August 2005, and a substantive appeal was received in September 2005. A Board video conference hearing was scheduled in June 2007; however, the veteran failed to show and has not filed a motion requesting a new hearing. The low back, shortness of breath, stomach/intestine and motion sickness issues are being remanded to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required on the appellant's part. FINDING OF FACT The veteran's dental problems are not a result of trauma in service, nor was he a prisoner of war. CONCLUSION OF LAW Dental disability was not incurred in or aggravated by the veteran's active duty service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.381 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet.App. 183, 187 (2002). The record shows that in a November 2004 VCAA letter, the appellant was informed of the information and evidence necessary to warrant entitlement to the benefits sought on appeal. The appellant was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet.App. 183 (2002); Charles v. Principi, 16 Vet.App. 370 (2002). The Board also notes that the November 2004 VCAA letter notified the appellant of the need to submit any pertinent evidence in the appellant's possession. In this regard, the appellant was advised, at page 3, to submit any evidence in his possession that pertains to his claim. The Board concludes that the requirements of 38 C.F.R. § 3.159(b)(1) have been met. The Board finds that all notices required by VCAA and implementing regulations were furnished to the appellant and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. The United States Court of Appeals for Veterans Claims' decision in Pelegrini v. Principi, 18 Vet.App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. In this case, the RO provided VCAA notice to the veteran in November 2004, which was prior to the February 2005 rating decision. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. Further, 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). In the present appeal, the appellant was provided with notice of what type of information and evidence was needed to substantiate the claim for service connection. Further, in May 2007, the veteran was sent a letter providing notice of the types of evidence necessary to establish a disability rating and effective date for the disabilities on appeal. Nevertheless, this notice was sent to the veteran at the same time his appeal was certified to the Board and, thus, he did not have adequate time to respond. However, despite the inadequate notice provided to the appellant, the Board finds no prejudice to the appellant in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet.App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the appellant has been prejudiced thereby). In that regard, as the Board concludes below that the preponderance of the evidence is against the appellant's claim for service connection, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot. Furthermore, the Board finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations. The record in this case includes service medical records and post service private treatment records. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the claimant. With regard to the dental disability claim, the Board finds that VA's duty to assist has been met. The evidence now of record with regard to this issue is sufficient to allow for appellate review; no VA examination is necessary. For all the foregoing reasons, the Board concludes that VA's duties to the claimant have been fulfilled with respect to the issues on appeal. Analysis Dental Disability The veteran is also claiming entitlement to service connection for dental disability. The Board notes that treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease will be considered service connected solely for the purpose of establishing eligibility for outpatient dental treatment as provided in 38 C.F.R. § 17.161. As such, service connection for compensation purposes is not available for a dental condition other than one resulting from dental trauma. In the instant case, the veteran's application for dental treatment was forwarded by the RO to the VA dental clinic in Fresno, California. The veteran was explicitly notified in the November 2004 VCAA letter to follow up directly with the dental clinic concerning any claim for dental treatment. Thus, in this decision, the Board will only address whether service connection is warranted for compensation purposes. The Board notes that, in a precedent opinion, VA's General Counsel held that dental treatment of teeth, even extractions, during service did not constitute dental trauma. See VAOPGCPREC 5-97, 62 Fed. Reg. 15,566 (1997). In determining service connection for treatment purposes, VA considers 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 the line of duty during active service. When applicable, VA will determine whether the condition is due to combat or other in- service trauma, or whether the veteran was interned as a prisoner of war. See 38 C.F.R. § 3.381(a) and (b). Service medical records showed that the veteran had generalized periodontitis in area 14 and 15. The April 1980 retirement examination showed that the veteran was missing teeth 1, 16, 31 and 32. It appears from dental records that these teeth were extracted during the veteran's service. However, service medical records are silent with respect to any dental trauma. The evidence as outlined above clearly shows that the veteran did not experience any dental trauma during service. Accordingly, service connection for compensation purposes must be denied. ORDER Entitlement to service connection for compensation purposes is not warranted for dental disability. To this extent, the appeal is denied. REMAND The veteran is also claiming entitlement to service connection for low back disability, shortness of breath, stomach/intestine disability, and motion sickness disability. Service medical records do include certain references to these disorders. Under the circumstances, the Board finds that VA examinations with etiology opinions are necessary to fully meet the duty to assist the veteran. Accordingly, the case is hereby REMANDED for the following actions: 1. The veteran should be scheduled for appropriate VA examination(s) to ascertain the nature and etiology of the claimed low back disability, shortness of breath, stomach/intestine disability, and motion sickness disability. The claims file must be made available to the examiner(s) for review. As to any of these claimed disorders which are found to be present on examination, the appropriate examiner should offer an opinion as to whether it is at least as likely as not (a 50% or higher degree of probability) that such disorder is causally related to service. 2. After completion of the above, the RO should review the expanded record and determine if service connection is warranted for low back disability, shortness of breath, stomach/intestine disability, and motion sickness disability. The veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The veteran and his representative have the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs