Citation Nr: 0814452 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 04-03 480A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for a dental disability, characterized as the removal of all bottom teeth, to include for treatment purposes. REPRESENTATION Appellant represented by: Thomas J. Reed, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Daniel Markey, Associate Counsel INTRODUCTION The veteran served on active duty from April 1975 to March 1976, with unverified service in the Army National Guard in the early 1980's. This case comes before the Board of Veterans' Appeals (Board) on appeal of a February 2002 rating decision of the Department of Veterans Affairs (VA) Medical and Regional Office Center (RO) in Wilmington, Delaware. When the case was previously before the Board in November 2007, it was remanded for the purpose of affording the veteran a video conference hearing. The veteran testified at a video conference hearing before the undersigned Veterans Law Judge in March 2008, and accepted such hearing in lieu of an in-person hearing before a Member of the Board. See 38 C.F.R. § 20.700(e) (2007). A transcript of the hearing is associated with the claims file. In May 2002, the veteran filed a notice of disagreement with a February 2002 rating decision that denied service connection for a foot disability. Later that month, she withdrew the notice of disagreement. The Board will limit its decision accordingly. The claim for service connection for hepatitis C is addressed in the remand that follows the order section of this decision. FINDINGS OF FACT 1. The veteran was discharged from active duty in March 1976. 2. The veteran was not a prisoner of ward, did not sustain dental trauma in service, and did not file an application for dental treatment within one year of her discharge from service. CONCLUSION OF LAW Service connection for a dental disability, characterized by the removal of all bottom teeth, for purposes of payment of disability compensation or for purposes of receiving VA outpatient dental treatment is precluded by law. 38 U.S.C.A. §§ 1110, 1131, 1712 (West 2002); 38 C.F.R. §§ 3.381, 4.150, 17.161 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 As explained below, the pertinent facts with respect to the veteran's dental claim are not in dispute and the law is dispositive. Consequently, there is no additional evidence that could be obtained to substantiate the claim for service connection for this disability, and no further action is required to comply with the VCAA or the pertinent implementing regulation. See Manning v. Principi, 16 Vet. App. 534, 542 (2002); VAOPGCPREC 5-2004 (June 23, 2004). Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.1(k), 3.303(a). Under 38 U.S.C.A. § 1712 outpatient dental services and treatment, and related dental supplies, may be furnished for a dental condition or disability when certain enumerated conditions are met. Under the holding in Mays v. Brown, 5 Vet. App. 302, 306 (1993), a claim for service connection is also considered a claim for VA outpatient dental treatment. As to each noncompensable service-connected dental condition, a determination will be made as to whether it was due to combat wounds or other service trauma. 38 C.F.R. § 3.381(b). The significance of finding that a dental condition is due to service trauma is that a veteran will be eligible for VA outpatient dental treatment, without being subject to the usual restrictions of a timely application and one-time treatment. 38 C.F.R. § 17.161(c) (2007). 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, loss of a portion of the ramus, and loss of a portion of the maxilla. Compensation for loss of teeth is available only for loss of body substance of the maxilla or mandible. Otherwise, VA may grant service connection for dental conditions including treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease, for the sole purposes of receiving VA outpatient dental services and treatment, if certain criteria are met. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 17.161. Analysis The veteran contends, essentially, that she reported for treatment of a toothache during service, and that military dental personnel removed all of her bottom teeth. As will be explained below, however, since the veteran did not experience dental trauma in service and did not file a timely claim for one-time corrective dental treatment, VA must deny service connection for compensation and treatment purposes. In this case, the veteran does not meet the criteria for compensation because the veteran does not claim, nor does the evidence show, that she sustained dental trauma in service. In light of this finding, the veteran is not entitled to compensation for extracted teeth as replaceable missing teeth are not disabling conditions and may be considered service- connected solely for the purpose of determining entitlement to dental examinations or outpatient dental treatment if certain criteria are met. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 17.161. The Board also finds that criteria for eligibility to receive VA outpatient dental treatment have not been met. Generally, a veteran is entitled to VA outpatient dental treatment if she qualifies under one of the categories outlined in 38 U.S.C.A. § 1712 and 38 C.F.R. § 17.161. Teeth noted at entry as normal will be service connected for treatment purposes if they were filled or extracted after 180 days or more of active service. 38 C.F.R. § 3.381 (d)(1) (2007). The report of the veteran's enlistment examination shows no dental abnormalities. The only dental record on file, dated early in the veteran's second month of active duty in May 1975, shows that the veteran underwent an X-ray examination, soft tissue examination, and fluoride treatment for her teeth. The associated X-ray report does show the veteran was apparently missing some bottom teeth, but these are not marked or assigned numbers on the corresponding report. Service medical records are negative for dental repair, extraction, or surgery. Since the veteran's contentions are that her bottom teeth were removed in a 1976 visit, she is apparently not referring to the teeth that were already missing in May 1975. Still, even if the Board presumes the specific bottom teeth missing on the May 1975 X- ray image were removed within the veteran's first few weeks of service, that would not place the removal of those teeth outside of 180 days from entry to active duty, as is required to establish service connection for treatment purposes of teeth noted as normal upon entry. There is no record of any dental treatment occurring in any service medical record or clinical record after the veteran's first 180 days of service. Accordingly, there is no provision of 38 C.F.R. § 3.381 that would allow for service connection of the veteran's bottom teeth. The Board has considered the veteran's statements that she presented for treatment of a toothache and subsequently had all her bottom teeth removed. However, this evidence is considered in light of all the evidence of record. In this case, there are no contemporaneous or post service dental records to support the veteran's contentions. The Board finds the absence of documentation of such treatment in service dental records combined with the minimal treatment actually shown in the May 1975 report to be more probative in portraying the nature and extent of active duty dental treatment than the veteran's contentions. Even if 38 C.F.R. § 3.381 (d)(1) provided a means to establish service connection for treatment purposes for some or all of the veteran's teeth, the Board has examined all classifications of dental disability under 38 C.F.R. § 3.381 and 17.161 and found that none of these apply to the veteran. For instance, there could be no eligibility for Class I dental care since she is not shown to have a service- connected compensable dental condition. See 38 C.F.R. § 4.150. The only class of dental treatment that is arguably applicable to the veteran is Class II, those having a service-connected non-compensable dental condition or disability shown to have been in existence at the time of discharge or release from active service, which took place before October 1, 1981. 38 C.F.R. § 17.161 (2007). Establishing the veteran's eligibility in this class could result in authorization of a one time treatment of her dental disability, but persons discharged in 1976 and qualifying under Class II must file an application for treatment within one year of discharge. See 38 C.F.R. § 17.161(b); see also Woodson v. Brown, 8 Vet. App. 352, 355 (1995) affirmed in part, dismissed in part by 87 F.3d 1304 (1996) (for veteran's who were discharged prior to October 1, 1981, the applicable time limit to file a dental claim cannot be tolled based on the service department's failure to notify a veteran about her right to file such a claim). The veteran did not do so. Accordingly, VA must deny service connection, to include for the purposes of entitlement to VA outpatient dental treatment, as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Service connection for a dental disability, characterized as the removal of all bottom teeth, to include for treatment purposes, is denied. REMAND VA provided the veteran an examination in August 2006 to determine the nature and etiology of her hepatitis C disability. The examiner opined that it is at least as likely as not that the veteran's hepatitis C was caused by or the result of her military service; however, the examiner failed to properly support his opinion. In October 2006, another VA physician reviewed the claims folder and stated that the veteran had multiple risk factors for hepatitis C, to include her lifestyle of drug abuse before and during service, tattoos, body piercing and her service in the Republic of Vietnam. Based on these factors, the physician opined that it was at least as likely as not that the veteran's hepatitis C was caused by or a result of her military service. In January 2007, the veteran's personnel records were associated with the claims file. These records show that she did not serve in the Republic of Vietnam. Although service medical records do document hepatitis and that the veteran abused intravenous drugs, service connection is precluded for disability resulting from the abuse of drugs. See 38 U.S.C.A. § 1110, 1131. In addition to intravenous drug use, however, the veteran reported to the August 2006 VA examiner that she was given tattoos and engaged in high risk sexual activity both before and during active duty. She denied both of these risk factors at the hearing before the undersigned. At the hearing before the undersigned and elsewhere in the record the veteran has contended that her hepatitis C is the result of sharing razors in service, working as a food service specialist in service, and receiving injections with a jet air gun in service. Neither of the medical opinions of record specifically addresses these contentions. In light of these circumstances, the Board has determined that another VA medical opinion addressing the etiology of the veteran's hepatitis C is required. The claims file also shows that the veteran has received VA outpatient treatment for her hepatitis C. Ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should undertake appropriate development to obtain any pertinent evidence identified but not provided by the veteran, including any existing records of VA treatment after August 2006. If the RO or the AMC is unsuccessful in its efforts to obtain any such evidence, it should so inform the veteran and her representative and request them to submit the outstanding evidence. 2. Then, the claims folder should be reviewed by a physician with appropriate expertise to determine the etiology of the veteran's hepatitis C. Following the claims folder review, the examiner should provide an opinion as to whether there is a 50 percent or better probability that the veteran's hepatitis C is etiologically related to her sharing razors in service, working as a food service specialist in service, and/or receiving injections with a jet air gun in service. The rationale for the opinion must also be provided. Another examination of the veteran should only be performed if deemed necessary by the physician providing the opinion. 3. The RO or the AMC should also undertake any other development it determines to be warranted. 4. Then, the RO or the AMC should readjudicate the claim based on a de novo review of all pertinent evidence and in light of all applicable legal criteria. If the benefit sought on appeal is not granted to the veteran's satisfaction, the veteran and her representative should be furnished a Supplemental Statement of the Case and given the requisite opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. By this remand, the Board intimates no opinion as to any ultimate outcome warranted in this case. The veteran need take no action unless she is otherwise notified. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs