Citation Nr: 0815160 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 05-32 623A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to service connection for gum disease. ATTORNEY FOR THE BOARD T.S. Willie, Associate Counsel INTRODUCTION The veteran served on active duty from April 1966 to October 1986. This claim comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision rendered by the Manila, the Republic of the Philippines, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDING OF FACT By regulation, periodontal disease (gum disease) may be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment. CONCLUSION OF LAW There is no legal entitlement to compensation benefits for gum disease. 38 U.S.C.A. §§ 1110, 1131, 1712 (West 2002); 38 C.F.R. §§ 3.303, 3.381, 17.161 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2006), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2007), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In addition, VA must also request that the veteran provide any evidence in the claimant's possession that pertains to the claim. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Prinicpi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial disability-rating and effective-date elements of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the originating agency provided the veteran with the notice required under the VCAA by letter dated in July 2004. Although letter provided adequate notice with respect to the evidence necessary to establish entitlement to service connection, it did not provide notice of the type of evidence necessary to establish a disability rating or effective date for the disability on appeal. See Dingess, supra. However, the veteran was subsequently provided notice pertaining to these latter two elements by letter dated in October 2006, prior to the issuance of a supplemental statement of the case (SSOC). Although the veteran received inadequate preadjudicatory notice, and that error is presumed prejudicial, the record reflects that he was provided with a meaningful opportunity such that the preadjudicatory notice error did not affect the essential fairness of the adjudication now on appeal. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). In connection with the current appeal, appropriate examinations have been conducted, and available service and post service records have been obtained. The veteran has not identified any outstanding evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. The evidence of record provides sufficient information to adequately evaluate the claim, and the Board is not aware of the existence of any additional relevant evidence which has not been obtained. No further assistance to the appellant with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Accordingly, the Board will address the merits of the claim. Factual Background Service medical records show that in April 1974 the veteran was seen for gingival bleeding. In January 1985, the veteran was diagnosed with generalized periodontitis. In November 1977 and November 1983, the veteran denied tooth or gum trouble. In March 1985 and at separation in October 1986, he noted severe tooth or gum trouble. The veteran's mouth was reported normal in March 1985 and at separation in October 1986. In October 2005, V.G.D. issued a finding that the veteran's teeth (23 and 25) were very mobile and needed to be extracted. It was further noted that the veteran's gums or this area was ulcerated because the two teeth were moving. The veteran was afforded a VA dental compensation and pension examination in November 2005. It was noted during this examination that the veteran frequented the dental clinic from 1970 to 1986 because of recurrent gingivitis, pyorrhea and dental carriers. It was also noted that the veteran underwent several dental extractions during service. Periodontal disease, resolved, was noted. Loss of teeth was also noted. The examiner opined that the veteran's loss of teeth was caused by or a result of the peridontitis found during service. However, the examiner found that there was no active gum disease at the moment and that the last episode of gingivitis was several years ago. The examiner explained that his rationale was based on clinical experience that persistent and/or recurrent periodontal disease will eventually lead to loss of dentition. In an April 2006 clinical summary issued by private physician L.F.G, it was noted that the veteran had recurrent gingival swelling and sought consult. L.F.G noted that he referred the veteran to a dentist for further evaluation. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303 (2007). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2007). A claim for service connection generally requires competent evidence of a current disability; proof as to incurrence or aggravation of a disease or injury in service, as provided by either lay or medical evidence, as the situation dictates; and competent evidence as to a nexus between the in-service injury or disease and the current disability. Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet. App. 465 (1995). Dental disabilities which may be awarded compensable disability ratings are set forth under 38 C.F.R. 4.150 (2007). These disabilities include chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss of the mandible, nonunion or malunion of the mandible, limited temporomandibular motion, loss of the ramus, loss of the condyloid or coronoid processes, loss of the hard palate, loss of teeth due to the loss of substance of the body of the maxilla or mandible and where the lost masticatory surface cannot be restored by suitable prosthesis, when the bone loss is a result of trauma or disease but not the result of periodontal disease. 38 C.F.R. 4.150, Diagnostic Codes 9900- 9916 (2007). Dental regulations provide that treatable missing teeth, dental or alveolar abscesses, and periodontal disease is considered service-connected solely for purposes of establishing eligibility for outpatient dental treatment as provided in 38 C.F.R. § 17.161 (2007). Analysis Initially, the Board notes that the provisions of 38 U.S.C.A. § 1154(b) do not apply, as it has not been alleged that the claimed disability was incurred while engaging in combat. The veteran is seeking service connection for gum disease. After careful review of the record, the Board finds that the preponderance of the evidence is against the veteran's claim. Recent treatment records do not reflect the presence of gum disease. Whether, however, the veteran suffers from periodontal disease is immaterial for compensation purposes because the condition is not recognized by the applicable regulations as a disability for which VA compensation may be granted. See 38 C.F.R. § 3.381. While gum disease may be service-connected for purposes of determining entitlement to dental examinations and/or outpatient dental treatment under 38 C.F.R. Part 17, such a question is not before the Board. Rather, the question at issue is entitlement to compensation benefits based on claimed gum disease. The benefit which the veteran seeks is barred by regulation. Therefore, there is no basis on which the Board might grant entitlement to service connection for gum disease at this time. See 38 C.F.R. § 3.381 Even assuming that compensation is payable for gum disease, the preponderance of the evidence is against the claim with regard to the issue of the existence of a current disability. The November 2005 VA compensation and pension examination noted that the veteran frequented the dental clinic from 1970 to 1986 because of recurrent gingivitis but had no active gum disease at the moment. The Board is mindful that the April 2006 clinical summary issued by private physician L.F.G noted that the veteran had recurrent gingival swelling and sought consult. However, it appears that L.F.G.'s notation regarding the gingival swelling was not based on examination but based on statements made by the veteran. Also, the Board notes that L.F.G. does not appear to be a dentist and that he referred the veteran to a dentist for further evaluation. Although L.F.G noted the veteran's diagnoses for diabetes mellitus, hypertension, hypertensive retinopathy and chronic obstructive pulmonary disease, he did not list a showing of gum disease. Although the veteran notes that he was found to have positive gum gingivitis and received ongoing treatment from 1977 to 1979, there is no current showing of gum disease. The evidence fails to show that the veteran currently has gum disease. Without evidence showing that a disease or disability is present, service connection is not warranted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). ORDER Service connection for gum disease is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs