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