Citation Nr: 1007200 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 08-00 170A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for extraction of teeth, including for the purpose of VA outpatient dental treatment. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. M. Kreitlow, Counsel INTRODUCTION The Veteran had active military service from November 1958 to February 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. FINDINGS OF FACT 1. The RO denied service connection for extraction of teeth in a July 1997 rating decision. The Veteran did not appeal that decision, and it is final. 2. None of the new evidence submitted subsequent to July 1997 in support of the Veteran's claim for service connection for extraction of teeth is material. 3. The Veteran failed to apply for one-time treatment to correct the extractions within one year of his discharge from service. CONCLUSIONS OF LAW 1. The July 1997 RO rating decision that denied service connection for extraction of teeth is final. 38 U.S.C.A. § 7105(b), (c) (West 2002); 38 C.F.R. § 3.160(d), 20.201, 20.302 (2009). 2. New and material evidence has not been received, and the Veteran's claim for service connection for extraction of teeth is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2009). 3. Service connection for one-time treatment for correction of extraction of teeth is barred by application of the law. 38 U.S.C.A. §§ 1712, 5107 (West 2002); 38 C.F.R. § 17.123 (1961); 38 C.F.R. § 3.381 and 17.161 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance Requirements 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 and 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) describe VA's duties to notify and assist claimants in substantiating a claim for VA benefits. In claims to reopen, as in this case, VA must both notify the claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy this requirement, VA is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. Id. VA's Office of General Counsel issued informal guidance interpreting the decision in Kent as requiring that the notice provided specifically identify the kind of evidence that would overcome the prior deficiency rather than simply stating the evidence must relate to the stated basis of the prior denial. VA Gen. Couns. Mem., para. 2, 3 (June 14, 2006). In the present case, notice was provided to the Veteran in April 2007. The Board finds that the notice provided fully complies with the above requirements. Likewise, the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. He was told it was his responsibility to support the claim with appropriate evidence and has been given the regulations applicable to VA's duty to notify and assist. Indeed, the Veteran submitted evidence in connection with his claim, which indicates he knew of the need to provide VA with information and evidence to support his claim. Thus the Board finds that the purposes behind VA's notice requirement have been satisfied, and VA has satisfied its "duty to notify" the Veteran, and any error in this regard is harmless. With respect to VA's duty to assist, VA is only required to make reasonable efforts to obtain relevant records that the veteran has adequately identified to VA. 38 U.S.C.A. § 5103A(b)(1). All efforts have been made to obtain relevant, identified and available evidence, and VA has notified the Veteran of any evidence that could not be obtained. VA, therefore, has made every reasonable effort to obtain all records relevant to the Veteran's claim. Generally 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. When a claim is one to reopen a finally decided claim, however, VA is not obligated to provide a medical examination or obtain a medical opinion until new and material evidence has been received. See 38 C.F.R. § 3.159(c)(4)(iii). Since the Veteran has failed to submit new and material evidence to reopen his claim for service connection for extraction of teeth, VA was not obligated to provide him with a medical examination. Thus, the Board finds that VA has satisfied its duties to inform and assist the Veteran at every stage of this case. Additional efforts to assist or notify him would serve no useful purpose. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis The veteran is seeking service connection for the extraction of teeth numbered 23, 24, 25 and 26 during service in November 1961 that he claims was due to an infection that he may have gotten because of his job duties. The Veteran's claim for service connection for extraction of teeth, however, was previously denied by the RO in a rating decision issued in July 1997. Rating actions are final and binding based on evidence on file at the time the veteran is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). A claimant has one year from notification of a RO decision to initiate an appeal by filing a Notice of Disagreement with the decision. The decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b) and (c). The Veteran did not at any time indicate disagreement with this rating decision. Therefore, it is final. 38 U.S.C.A. § 7105. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the veteran. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). "New" evidence is defined as evidence not previously submitted to agency decision makers and "material" evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claims sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. The evidence received subsequent to the last final rating decision, July 1997 in the present case, is presumed credible for the purposes of reopening a claim unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1995); Justus v. Principi, 3 Vet. App. 510, 513 (1992). See also Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995). The Board notes that, in the July 1997 rating decision, the RO denied the Veteran's claim for extraction of teeth because the evidence failed to show a disability for which compensation may be established and that the extraction of teeth was due to dental trauma. Thus, the evidence submitted by the Veteran must relate to the fact that the Veteran has a current dental disability that was due to dental trauma in service. New evidence received since July 1997 consists of the Veteran's statements, VA treatment records and Social Security Administration records. The VA treatment records and Social Security Administration records, although new, are not material as they fail to show any complaints of, treatment for or diagnosis related to the Veteran's missing teeth. The Veteran submitted statements relating to his claim. In his March 2007 claim, he stated that, while in service, he "had some dental work done, they took x-rays, while they were doing dental work I got an infection, my head became swollen, do (sic) to the infection, the dentist gave be 600,000 units of penesilen (sic), this did not help that much so the dentist told me he was going to do an emergency extraction on my front teeth, after the extraction the dentist said that there was not enough time to finish what he had done, because I was on alert to go to the Bay of Pigs, I was also extended, in this time when I was on alert status I had no time to go back to the dentist because he said that there was not enough time to finish what he had done." In his August 2007 Notice of Disagreement, the Veteran stated that "approximately on Nov 18th 1961, I got an infection in my front teeth that may have resulted from my duties on the job. My head became so swollen that I was unable to eat. The dentist took an x-ray of my teeth and found that#24 and #25 were infected. Surgery was done on my gums to allow them to drain. At that time, I was administered 600,000 units of Penicillin. After going back for another x-ray on the 22nd of Nov 1961 they decided to pull teeth #23, #24, #25 and #26. During this time my tour of duty was extended for 6 months because of the Cuban missile crisis. The doctor told me that they wouldn't fix it at that time due to the uncertainty of the time I had left. The doctor assured me that the military would repair my teeth. When the crisis was over, I was discharged at that time, the problem with my teeth was never taken care of. I was never notified that the problem with my teeth could have been taken care of." Although some of the information given in these statements is new, the Board finds that none of it is material as it fails to establish that the Veteran suffered dental trauma in service or was a prisoner of war. Without such a showing, the Veteran was only entitled to treatment reasonably necessary for the one-time correction of the service- connected dental disability or condition and was required to have filed an application for such treatment within one year after discharge. See 38 C.F.R. § 17.123(b), (c) and (d) (1961) and § 17.161(b)(2)(i), (c) and (d) (2009). When applicable, the rating activity will determine whether the condition is due to combat or other in-service trauma, or whether the veteran was interned as a prisoner of war. 38 C.F.R. § 3.381(b). The significance of finding a dental condition is due to in-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). The term "service trauma" does not include the intended effects of treatment provided during the veteran's military service. VAOPGCPREC 5-97 (1997), 63 Fed. Reg. 15,556 (1997). For the purposes of determining whether a veteran has treatment eligibility, the term "service trauma" does not include the intended effects of treatment provided during the veteran's military service. VAOPGCPREC 5-97 (1997), 63 Fed. Reg. 15,556 (1997). The GC concluded that, from a legal or medical perspective, trauma is an injury. Since treatment is given in order to remedy the effects of disease or injury, dental treatment is not synonymous with dental trauma. Id. Moreover, in order to have a compensable dental disability, the loss of teeth must have been due to loss of substance of body of the maxilla or mandible without loss of continuity and such loss cannot be restored by suitable prosthesis. 38 C.F.R. § 4.150, Diagnostic Code 9913. Ratings under this Diagnostic Code only apply to bone loss through trauma or disease such as osteomyelitis, and not to the loss of the elveolar process as a result of periodontal disease, since such loss is not considered disabling. Id. Note. As the new evidence fails to show that there was dental trauma, it also fails to establish that the Veteran has a dental disability for which compensation may be granted. For the foregoing reasons, the Board finds that new and material evidence has not been received to reopen the Veteran's claim. Furthermore, as the evidence fails to establish dental trauma in service, the Veteran is barred by application of law to one-time treatment as he failed to file his claim for such within one year after his discharge from service. Consequently, the Veteran's claim must be denied. ORDER New and material evidence has not been received to reopen a claim for service connection for extraction of teeth, and the Veteran's claim to reopen is denied. ___________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs