Citation Nr: 0814315	
Decision Date: 04/30/08    Archive Date: 05/08/08

DOCKET NO.  06-13 237	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, 
Illinois


THE ISSUE

Whether new and material evidence has been obtained to reopen 
a claim of entitlement to service connection for a chronic 
dental disorder, to include for the purpose of obtaining VA 
outpatient dental treatment.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States


ATTORNEY FOR THE BOARD

Stephanie L. Caucutt, Associate Counsel


INTRODUCTION

The veteran had active military service from August 1944 to 
July 1949.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from an April 2005 rating determination of 
a Regional Office (RO) of the Department of Veterans Affairs 
(VA) in Cleveland, Ohio.  During this appeal the veteran 
relocated to Illinois; his claim was therefore transferred to 
the RO in Chicago, Illinois.

The issue before the Board today was remanded in September 
2007 for further evidentiary and procedural development.  
This was accomplished, and the Board concludes that it may 
proceed with a decision at this time.

The Board, in its September 2007 remand, referred to the RO 
the issue of entitlement to service connection for a chronic 
jaw disorder.  It does not appear, however, that any action 
was taken on this issue; thus, it is once again REFERRED for 
RO consideration.


FINDINGS OF FACT

1.  A January 1956 rating decision denied the veteran's claim 
of entitlement to service connection for a chronic dental 
disorder, to include for the purpose of obtaining VA 
outpatient dental treatment.  The veteran was notified of his 
appellate rights, but did not file a notice of disagreement.

2.  Evidence received since the January 1956 rating decision 
is cumulative of the evidence of record at the time of the 
prior denial and does not relate to an unestablished fact 
necessary to substantiate the claim.


CONCLUSIONS OF LAW

1.  The January 1956 rating decision which denied the 
veteran's claim of entitlement to service connection for a 
chronic dental disorder, to include for the purpose of 
obtaining VA outpatient dental treatment, is final.  38 
U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1003 (2007).

2.  Evidence received since the January 1956 rating decision 
in connection with veteran's request to reopen a claim of 
service connection for a chronic dental disorder, to include 
for the purpose of obtaining VA outpatient dental treatment, 
is not new and material.  38 U.S.C.A. § 5108 (West 2002); 38 
C.F.R. § 3.156 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duties to Notify and Assist

Under the Veterans Claims Assistance Act (VCAA), when VA 
receives a complete or substantially complete application for 
benefits, it 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) (West 2002).  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 
(2007).  See also Pelegrini v. Principi, 18 Vet. App. 112, 
120-21 (2004) (Pelegrini II).

In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held 
that in order to successfully reopen a previously and finally 
disallowed claim, the law requires the presentation of a 
special type of evidence - evidence that is both new and 
material.  The terms "new" and "material" have specific, 
technical meanings that are not commonly known to VA 
claimants.  Because these requirements define particular 
types of evidence, when providing the notice required by the 
VCAA it is necessary, in most cases, for VA to inform 
claimants seeking to reopen a previously and finally 
disallowed claim of the unique character of evidence that 
must be presented.  This notice obligation, however, does not 
modify the requirements discussed above.  See Dingess v. 
Nicholson, 19 Vet. App. 473 (2006).  In other words, VA must 
notify a claimant of the evidence and information that is 
necessary to reopen the claim and VA must notify the claimant 
of the evidence and information that is necessary to 
establish his or her entitlement to the underlying claim for 
the benefit sought.

After careful review of the record, the Board finds that VA 
provided the veteran with all necessary and proper VCAA 
notice.  In this regard, a September 2004 letter notified the 
veteran of the evidence and information necessary to 
establish entitlement to his underlying claim to service 
connection for a chronic dental disorder, to include for the 
purpose of obtaining VA outpatient dental treatment.  A 
September 2007 letter provided appropriate notice regarding 
what constituted new and material evidence, and specifically 
informed him what evidence and information was necessary to 
reopen his previously disallowed claim.  The September 2007 
letter also advised the veteran 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).  
Finally, both letters expressly informed him of the need to 
submit any pertinent evidence in his possession.  

During the pendency of this appeal, on March 3, 2006, the 
Court issued a decision in Dingess v. Nicholson, 19 Vet. App. 
473, 484 (2006), which held that the VCAA notice must include 
notice that a disability rating and an effective date for the 
award of benefits will be assigned if service connection is 
awarded.  The September 2007 letter provided such notice.

The Board observes that the September 2004 letter was sent to 
the veteran prior to the April 2005 rating decision.  The 
VCAA notice with respect to the elements addressed in this 
letter was therefore timely.  See Pelegrini v. Principi, 18 
Vet. App. 112 (2004).  The September 2007 letter, however, 
was sent to the veteran after the April 2005 rating decision.  
To the extent that the notice was not given prior to the 
initial adjudication of the claim in accordance with 
Pelegrini II, the Board finds that any timing defect was 
harmless error.  See Mayfield v. Nicholson, 19 Vet. App. 103 
(2005).  The notice provided to the veteran in the September 
2007 letter fully complied with the requirements of 38 U.S.C. 
§ 5103(a) and 38 C.F.R. § 3.159(b), and, after the notice was 
provided, the case was readjudicated and a December 2007 
supplemental statement of the case was provided to the 
veteran.  See Pelegrini II, supra; Mayfield v. Nicholson, 20 
Vet. App. 537 (2006) (a (supplemental) statement of the case 
that complies with all applicable due process and 
notification requirements constitutes a readjudication 
decision).

In light of the above, the Board finds that all notices 
required by VCAA and implementing regulations were furnished 
to the veteran and that no useful purpose would be served by 
delaying appellate review to send out additional VCAA notice 
letters.

The Board also finds that the there has been substantial 
compliance with the assistance provisions set forth in the 
law and regulations.  In this regard, the veteran's service 
medical records are associated with the claims folder, as 
well as all relevant VA and private treatment records.  A 
request was made for records from the Barnes Jewish Hospital; 
however, a negative reply was received from such facility in 
January 2005.  The veteran has not identified any additional 
relevant, outstanding records that need to be obtained before 
deciding his claim.  

Under the circumstances of this case, "the record has been 
fully developed," and "it is difficult to discern what 
additional guidance VA could have provided to the veteran 
regarding what further evidence he should submit to 
substantiate his claim."  Conway v. Principi, 353 F.3d 1369 
(Fed. Cir. 2004).  Therefore, the Board is satisfied that VA 
has complied with the duty to assist requirements of the VCAA 
and the implementing regulations and the record is ready for 
appellate review.

		Analysis

Generally, an unappealed Board denial is final under 38 
U.S.C.A. §§ 7103 and 7104 (West 2002).  However, the veteran 
may request that VA reopen his claim upon the receipt of 'new 
and material' evidence.  38 U.S.C.A. § 5108 (West 2002).  If 
new and material evidence is presented or secured with 
respect to a claim that has been disallowed, VA must reopen 
the claim and review its former disposition.  Id.  See also 
Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998).  
According to 38 C.F.R. § 3.156(a) (2007), 'new and material' 
evidence means existing evidence that by itself or when 
considered with previous evidence of record, relates to an 
unestablished fact necessary to substantiate the claim.  New 
and material evidence can be neither cumulative nor redundant 
of the evidence of record at the time of the last prior final 
denial of the claim sought to be reopened, and must raise a 
reasonable possibility of substantiating the claim.  Id.

The veteran was previously denied entitlement to service 
connection for a chronic dental disorder, to include for the 
purpose of obtaining VA outpatient dental treatment, by a 
January 1956 rating decision.  The veteran's claim was denied 
on the basis that he had not (1) submitted evidence of 
compensable dental disability related to service, (2) filed a 
claim for a service-connected noncompensable dental 
disability within one year of discharge or by December 31, 
1954, or (3) submitted evidence of a noncompensable dental 
disability due to combat or service trauma.  At such time, 
the evidence of record consisted of statements from the 
veteran and the veteran's service medical records.  

In July 2004 the veteran filed to reopen his claim for 
entitlement to service connection for a chronic dental 
disorder, to include for the purpose of obtaining VA 
outpatient dental treatment.  An April 2005 RO rating 
decision denied his application to reopen due to lack of new 
and material evidence.  The veteran was again notified of his 
appellate rights, and perfected an appeal of this issue.  New 
evidence received since the January 1956 rating decision 
includes more statements from the veteran regarding the 
alleged "inadequate" dental care he received during service 
that "almost bordered on assault."  See May 2005 Notice of 
Disagreement.  In a September 2004 written statement, the 
veteran noted that his in-service dental treatment consisted 
of having eighteen cavities filled in one day.  Also new to 
the record are dental treatment records from Southern 
Illinois University School of Dental Medicine at Edwardsville 
(SIUE).  Pertinent to this appeal, such records show that the 
veteran was diagnosed with calculus, caries or fracture (#12 
and 30), and missing teeth (#1, 13, 14, 15, 16, 17, 31, and 
32).  See Radiology Report dated January 11, 1979.  

The Board has carefully reviewed the newly submitted 
evidence.  And while such evidence is considered new, it is 
not material.  More specifically, it does not relate to an 
unestablished fact necessary to substantiate the veteran's 
claim.  

With respect to the first basis for the January 1956, the 
Board observes that none of the newly submitted evidence 
demonstrates that the veteran has a compensable dental 
disorder that is related to his military service.  In this 
regard, the veteran has not presented competent medical 
evidence that any of his missing teeth are not replaceable, 
nor has he shown that his possibly fractured teeth (#12 and 
30) are a result of his military service.  See 38 C.F.R. 
§ 3.381(a) (2007) (carious teeth and replaceable missing 
teeth will only be considered service-connected for the 
purpose of establishing eligibility for outpatient dental 
treatment under 38 C.F.R. § 17.161); see also 38 C.F.R. 
§ 3.381(e) (calculus is not considered a disabling disorder 
even for treatment purposes).  Although his service dental 
records show that #30 was filled during service, there is no 
indication of a fracture during service.  See Separation 
Examination Report dated July 28, 1949.  There is no 
indication of any problems with #12 during service.  

In order to warrant service connection for the purpose of 
establishing eligibility for outpatient dental treatment, the 
veteran must either (1) make an application within one year 
of the date of his discharge from service or by December 31, 
1954, whichever is later, or (2) demonstrate that his dental 
disability is the result of a combat or service trauma.  
38 C.F.R. § 3.381(a), 17.161(b)(2) and (c) (2007); 38 C.F.R. 
§ 17.123(b) (1956) (veteran seeking Class II eligibility had 
to apply for treatment within 1 year after discharge or 
release, or by December 31, 1954); see also Woodson v. Brown, 
8 Vet. App. 352, 355-56 (1995) (regulatory limit exists for 
application for dental treatment for veterans discharged 
prior to January 1, 1958 under 38 C.F.R. § 17.123 (1956)).  

In the present case, the veteran has not presented any new 
evidence that he filed for outpatient dental treatment of a 
noncompensable dental disability within one year of service 
separation or by December 31, 1954.  Additionally, despite 
his assertion that his in-service dental treatment amounted 
to "assault," under VA laws and regulations, the veteran 
has not presented any competent evidence of combat or service 
trauma which might warrant Class IIa eligibility.  See 
VAOPGCPREC 5-97(the term "service trauma" does not include 
the intended effects of treatment provided during the 
veteran's military service).  The veteran makes no contention 
of any combat trauma to his teeth or in-service dental trauma 
other than treatment.  

In light of the above, the Board finds that the evidence 
submitted by the veteran in conjunction with his request to 
reopen his previously disallowed claim, while new, is not 
material.  In this regard, none of the evidence associated 
with the record since the January 1956 rating decision 
demonstrates that the veteran has a compensable dental 
disability related to service or a noncompensable dental 
disability due to combat or service trauma.  Since none of 
this newly submitted evidence pertains to the reasons for the 
prior denial nor raises the reasonable possibility of 
substantiating the veteran's underlying claim, his request to 
reopen the previously disallowed claim of entitlement to 
service connection for a chronic dental disorder, to include 
for the purpose of obtaining VA outpatient dental treatment, 
is denied.  38 C.F.R. § 3.156(a).


ORDER

The veteran's request to reopen a previously disallowed claim 
of entitlement to service connection for a chronic dental 
disorder, to include for the purpose of obtaining VA 
outpatient dental treatment, is denied.



____________________________________________
MILO H. HAWLEY 
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs