Citation Nr: 0815169 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 04-08 870 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a dental disorder, to include dental trauma due to exposure to contaminated water during active duty service. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney ATTORNEY FOR THE BOARD K.A. Kennerly, Associate Counsel INTRODUCTION The veteran served on active duty from September 1945 to December 1946. His DD Form 214 indicates that his service included a tour of duty in the European Theatre of Operations from March 27, 1946, to November 19, 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2001 rating decision of the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the veteran's claim. For good cause shown, the veteran's appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. §7107 (West 2002) and 38 C.F.R. §20.900(c) (2007). By an August 2005 decision, the Board denied service connection for a dental disorder, to include dental trauma due to exposure to contaminated water. The veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). Thereafter, by an August 2006 Order, the Court, pursuant to a joint motion, vacated the Board's August 2006 decision, and remanded the case for compliance with the instructions of the joint motion. In March 2007, the Board remanded this claim for additional development. Said development having been accomplished, the claim has been returned to the Board for adjudication. As an additional matter, the Board notes that a second attorney other than the one identified as the representative on the title page co-authored the joint motion, and submitted written argument in support of the veteran's case in February 2007. The record reflects that both attorneys are members of the same law firm, and the October 2006 veterans benefits attorney/client contingent fee agreement lists the second attorney as among the affiliated and/or associated attorneys whom the veteran consented to having access to his VA records. However, as the agreement was executed between the first attorney and the veteran, he has been listed as the representative on the title page. FINDING OF FACT The veteran's current dental disorder has not been shown by the probative and competent evidence of record to be related to service, including any contaminated water that may have been ingested therein. CONCLUSION OF LAW A dental disorder was not incurred in or aggravated by active duty service, to include as due to exposure to contaminated water. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.310(a), 3.381 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. The Veterans Claims Assistance Act of 2000 (VCAA) With respect to the veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. During the adjudication of the veteran's claim, letters dated in May 2001, September 2002 and April 2007 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2007); Quartuccio, at 187. The veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The April 2007 letter told him to provide any relevant evidence in his possession. See Pelegrini II, at 120-21. Although these letters were not sent prior to initial adjudication of the veteran's claim, this was not prejudicial to him, since (1) the initial claim predated the enactment of the VCAA, (2) he was subsequently provided adequate notice in September 2002 and again in April 2007 and (3) the claim was readjudicated and additional supplemental statements of the case (SSOCs) were provided to the veteran in February 2004, April 2005 and February 2008. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). While the veteran was provided with appropriate notice in April 2007, followed by a subsequent adjudication in February 2008, the Board has concluded that the preponderance of the evidence is against the claim for service connection. Therefore, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot, and no further notice is needed. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The veteran's service medical records and VA medical records are in the file. Private medical records identified by the veteran have been obtained, to the extent possible. The veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. In a case such as this where it appears that veteran's service medical records are incomplete, the Board's obligation to explain its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule, is heightened. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The Board must point out, however, the O'Hare precedent does not raise a presumption that the missing medical records would, if they still existed, necessarily support the veteran's claim. Case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision when the veteran's medical records have been destroyed. See Ussery v. Brown, 8 Vet. App. 64 (1995). Similarly, the case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. See Russo v. Brown, 9 Vet. App. 46 (1996). In the present case, the veteran's separation examination is of record, which is the most indicative of his dental health at discharge. In December 2007, the Board contacted the United States Army and Joint Services Records Research Center (JSRRC), (formerly known as the United States Army and Joint Services Records Research Center) and requested any information that could substantiate the veteran's claim of exposure to contaminated drinking water. VA provided the veteran's name, Social Security number, service number, unit of assignment, dates of assignment in Germany, his military occupational specialty and the names of the veteran's commanding officers. A response was received in December 2007, stating that JSRRC was unable to locate any unit records that were retired by the 3552nd Quartermaster Truck Company for 1946. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The veteran was afforded a medical examination in July 2007 to obtain an opinion as to whether his current dental disorder could be directly attributed to service, to include dental trauma due to exposure to contaminated water. Further examination or opinion is not needed on the claim because, at a minimum, there is no persuasive and competent evidence that the claimed conditions may be associated with the veteran's military service or exposure to contaminated water therein. This is discussed in more detail below. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. The Merits of the Claim The veteran alleges that during the time he was stationed in Munich, Germany, he was warned by his commanding officers on several occasions of health concerns regarding contamination of the drinking water. The veteran further stated that due to this contamination, he and his fellow soldiers were instructed to brush their teeth two to three times per day. This contamination was described to the veteran as an oily residue found on the grass every morning, which thereafter affected the drinking water. The veteran further reports that he was informed that this oily residue would attach to the enamel on the teeth, eventually causing tooth loss. Regulations authorize one-time dental examination and treatment for a service-connected noncompensable dental disability. See 38 U.S.C.A. §1712 (West 2002); 38 C.F.R. §17.161 (2007). The veteran does not contend that he is entitled to one-time treatment; rather, he seeks VA dental treatment due to his in-service trauma, characterized as the ingestion of contaminated water, as well as compensation based upon service-connected status. Dental treatment is authorized for dental disorders due to in-service trauma. See 38 U.S.C.A. §1712 (West 2002); 38 C.F.R. §17.161 (2007). Dental treatment is also authorized for compensable service-connected dental disorders. Id. Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, periodontal disease (pyorrhea), and Vincent's stomatitis are defined as non- disabling conditions, and may be considered service connected solely for the purpose of determining entitlement to dental examinations or outpatient dental treatment. See 38 C.F.R. §3.381 (2007). The significance of a finding that a dental condition is due to in-service trauma is that the veteran may be authorized to receive any VA dental care indicated as reasonably necessary for the correction of such service-connected noncompensable condition or disability. See 38 C.F.R. §17.161(c) (2007). Under 38 C.F.R. §17.161(c), the term "service trauma" does not include the intended effects of treatment provided during the veteran's military service, including tooth extraction. See VAOPGCPREC 5-97; 62 Fed. Reg. 15,566 (1997). Pertinent dental regulations require a determination as to whether the dental condition was due to combat or trauma, when applicable. See 38 C.F.R. §3.381(b) (2007). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110 (West 2002). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. See 38 C.F.R. § 3.303(b) (2007). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2007). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for periodontal disease will be granted solely for the purpose of establishing eligibility for outpatient dental treatment in accordance with 38 C.F.R. §§ 3.381, 17.161 (2007). Service connection may be granted if the evidence establishes that the claimed disability is related to service. In the case of service connection for VA dental treatment purpose, the evidence must establish that the claimed dental disorder is related to service, to include dental trauma as due to the ingestion of contaminated water. There is evidence of a current disability in the form of the veteran's severe dental pathology, as described by Gary J. Green, D.D.S., the veteran's private dentist. In a letter dated in April 2004, Dr. Green characterized the veteran as a "dental cripple", requiring full mouth reconstruction to include opening vertical dimension, reconstructing teeth and functional occlusion. Thus, element (1) of Hickson has been satisfied. With respect to Hickson element (2), as noted above, with the exception of the veteran's separation examination report, service medical records, including any service dental records, are not available. Significantly, however, the record of the veteran's separation examination disclosed that there were no teeth abnormalities and no mouth or gum abnormalities upon the veteran's separation from service in November 1946. Notwithstanding that evidence, due to the fact that the remainder of the veteran's service medical records are unavailable, the Board recognizes its heightened duty to explain its findings and conclusions and to consider the benefit of the doubt in cases where such records are unavailable. See O'Hare, supra. With that heightened duty in mind, the veteran is deemed competent to claim that he ingested contaminated water during his nine month tour of duty in Germany. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). Just as important, there is no indication that the veteran is competent to establish the exact nature of the alleged contaminant(s). With respect to Hickson element (3), the veteran himself has theorized that his dental disorder is directly the result of his alleged ingestion of contaminated water in Germany during his period of service. Although the veteran earnestly believes this theory to be true, even an educated guess requires some evidentiary foundation to place the possibility of causation in equipoise with mere coincidence. See 38 U.S.C.A. §5107(a) (West 2002). The veteran is also not qualified to render such an opinion. See Layno, supra. With regard to the decades-long evidentiary gap in this case between active service and the earliest dental complaints in 2002, the Board notes that this absence of evidence constitutes negative evidence tending to disprove the claim that the veteran had an injury in service which resulted in chronic disability or persistent symptoms thereafter. See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact); see also 38 C.F.R. § 3.102 (noting that reasonable doubt exists because of an approximate balance of positive and "negative" evidence). Thus, the lack of any objective evidence of continuing dental complaints, symptoms, or findings for approximately 60 years from discharge to the veteran's treatment in 2002, is itself evidence which tends to show that a dental disability did not have its onset in service or for many years thereafter. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service, which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board must consider all the evidence including the availability of medical records, the nature and course of the disease or disability, the amount of time that elapsed since military service, and any other relevant facts in considering a claim for service connection. Id.; cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000) (holding that the absence of medical records during combat conditions does not establish absence of disability and thus suggesting that the absence of medical evidence may establish the absence of disability in other circumstances). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003). Despite the significant evidentiary gap between the veteran's discharge from service and his first dental complaints, the Board will continue to analyze the remaining medical evidence. The Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. See Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). In support of the veteran's claim, the Board has considered the April 2004 letter from Dr. Green, as indicated above. In that correspondence, Dr. Green indicated that he has known the veteran for approximately 25 years, and that during that period he had watched the veteran's dental condition steadily decline. Dr. Green also indicated that the veteran had disclosed to him early in their professional relationship that he had been exposed to certain chemical agents in his drinking water during the period of 1945 to 1946, and those agents would present him with problems in his later life. It was also noted that the veteran had been informed that records of these chemical contaminants would be on file with VA. After noting the veteran's severe dental problems, Dr. Green opined that these factors "have more likely than not played a real and significant role in the decline and eventual loss of many of the veteran's teeth." The Board does not find the opinion of Dr. Green, as to the etiology of the veteran's dental disorder, to be even remotely persuasive. It is clear that Dr. Green's opinion and observations were based exclusively on the report of history from the veteran. There is no indication that he had the benefit of a review of the veteran's medical records in general, or his available service medical records in particular. It is noteworthy that the veteran's dentist was mistaken as to the period of service during which the veteran could have been exposed to contaminated water in Germany as the veteran had alleged, indicating that it was during 1945 and 1946. Further, there is no indication that Dr. Green had any idea as to what the alleged chemical agent contaminants were. The speculative nature of this physician's opinion is evident. The Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account of a claimant is of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) [generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described]; Reonal v. Brown, 5 Vet. App. 458, 461 (1993) [the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant]. A bare conclusion, even one reached by a medical professional, is not probative without a factual predicate in the record. See Miller v. Brown, 11 Vet. App. 345, 348 (1998). While the Board may not ignore a medical opinion, it is certainly free to discount the relevance of a physician's statement. See Sanden v. Derwinski, 2 Vet. App. 97 (1992). In essence, the veteran's unsupported history lessens the value of the medical opinion rendered because the opinion was clearly based solely on that history. The Board notes another disturbing aspect of the veteran's case involving the opinion offered by Dr. Green. It is observed that Dr. Green and his dental office had communicated with the RO on two occasions prior to the submission of the 2004 opinion. In February 2003, Dr. Green sent a statement to the RO indicating that his treatment of the veteran from 1970 to 2002 was limited to an initial examination and a full mouth x-ray. In March 2003, Dr. Green's office manager contacted the RO and indicated that the veteran had been treated by Dr. Green since the 1970's and with the exception of one crown in 1991, his treatment was limited to routine dental care, cleaning, and x-rays. The manager noted that there was no history of gum disease or any condition that appeared to be the result of trauma. These earlier contradictory statements fully compromise any probative value of the latter supporting statement of Dr. Green. Moreover, as noted, the service separation examination fails to disclose any treatment for chronic problems of the teeth during service. Even assuming that the veteran did undergo such treatment, and assuming further that he ingested contaminated water, as a layperson he is not competent to provide an opinion that requires medical expertise. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). In the absence of any contemporaneous medical evidence of the nature of his ingestion of actual contaminated water in service with the separation examination being negative, any opinion about a disorder caused by "chemical agents" has no factual premise and is considered no more than speculation. On the other hand, the evidence against the veteran's claim consists first of the report of the separation examination that clearly indicated no teeth or mouth abnormality found upon separation from service. More importantly, the fact that there is no documentation of dental problems for almost 60 years following the veteran's period of service, is highly probative, by definition, of the lack of chronicity between the veteran's current dental problems and his 16 month period of service that ended in 1946. Additionally, the VA dental examination afforded to the veteran in July 2007 supports this contention. The examiner concluded the veteran's loss of teeth was secondary to caries and periodontal disease. The veteran had lost many teeth, which the examiner speculated was most likely based on the current condition of his mouth (caries and periodontal disease) and not likely the result of drinking contaminated water. This conclusion was based on the fact that, according to the veteran's separation physical from the military, he had no dental problems. Secondly, the examiner's conclusion was based on the fact the veteran did not maintain proper hygiene and dental care. In summary, the Board must conclude that the preponderance of the evidence fails to document the veteran's dental disorder is proximately due to the incurrence or aggravation of a disease or injury in service or the result of a service- connected disease or injury. See 38 C.F.R. §3.310(a) (2007). There is no competent medical evidence that indicates such a relationship. The veteran's claim must be denied on that basis. The medical evidence, in fact, serves to contradict the veteran's contention that his dental disorder is related to service. Based upon the foregoing analysis, the Board finds that a preponderance of the evidence in this case is against the claim for service connection for a dental disorder on any basis. As to the question of according reasonable doubt to the veteran's claim, based on a thorough review of the record, it is concluded that there is no approximate balance of the evidence for and against the claim. Indeed, the preponderance of the evidence is against finding that the disorder at issue is related to service, and thus against the claim for service connection for a dental disorder. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for the claimed disorder must be denied. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a dental disorder, to include dental trauma due to exposure to contaminated water during active duty service, is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs