Citation Nr: 1105000	
Decision Date: 02/07/11    Archive Date: 02/14/11

DOCKET NO.  08-39 072	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, 
Florida


THE ISSUE

Entitlement to service connection for a dental disability for 
compensation purposes.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the 
United States


ATTORNEY FOR THE BOARD

M.W. Kreindler, Counsel


INTRODUCTION

The Veteran served on active duty from October 1967 to September 
1969.

This matter comes to the Board of Veterans' Appeals (Board) from 
a December 2007 rating decision of a Department of Veterans 
Affairs (VA) Regional Office (RO).  A notice of disagreement was 
filed in July 2008, a statement of the case was issued in 
November 2008, and a substantive appeal was received in December 
2008.  The Veteran was scheduled to attend a Board hearing in 
April 2010; however, cancelled such request in March 2010.  This 
matter was remanded in September 2010.


FINDING OF FACT

The Veteran's dental problems are not as a result of trauma in 
service, nor was he a prisoner of war.


CONCLUSION OF LAW

Dental disability was not incurred in or aggravated by the 
Veteran's active duty service.  38 U.S.C.A. §§ 1110, 5107 (West 
2002 and West Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 
3.381 (2010).


REASONS AND BASES FOR FINDING AND CONCLUSION

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified 
at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; 
see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a 
duty to notify the claimant of any information and evidence 
needed to substantiate and complete a claim, and of what part of 
that evidence is to be provided by the claimant and what part VA 
will attempt to obtain for the claimant.  38 U.S.C.A. § 5103(a); 
38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 
183, 187 (2002).  

The United States Court of Appeals for Veteran Claims' (Court's) 
decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, 
in part, that a VCAA notice, as required by 38 U.S.C.A. § 
5103(a), must be provided to a claimant before the initial 
unfavorable agency of original jurisdiction (AOJ) decision on a 
claim for VA benefits.  This decision has since been replaced by 
Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the 
Court continued to recognize that typically a VCAA notice, as 
required by 38 U.S.C.A. § 5103(a), must be provided to a claimant 
before the initial unfavorable agency of original jurisdiction 
(AOJ) decision on a claim for VA benefits.  

Pursuant to the September 2010 Remand, a VCAA letter was issued 
to the Veteran in September 2010.  While such letter did not 
predate the rating decision, such letter did notify the Veteran 
of what information and evidence is needed to substantiate his 
claim, as well as what information and evidence must be submitted 
by the claimant, what information and evidence will be obtained 
by VA, and the types of evidence necessary to establish an 
increased rating and effective date.  Id.; but see VA O.G.C. 
Prec. Op. No. 1-2004 (Feb. 24, 2004); see Dingess/Hartman v. 
Nicholson, 19 Vet. App. 473 (2006).  Despite initial inadequate 
notice provided to the Veteran, the Board finds no prejudice to 
him in proceeding with the issuance of a final decision.  See 
Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board 
addresses a question that has not been addressed by the agency of 
original jurisdiction, the Board must consider whether the 
appellant has been prejudiced thereby). Since the Board concludes 
below that the preponderance of the evidence is against 
entitlement to service connection, any questions as to the 
appropriate disability rating and effective date to be assigned 
are rendered moot. 

The Veteran has received all essential notice, has had a 
meaningful opportunity to participate in the development of his 
claim and is not prejudiced by any technical notice deficiency 
along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 
2004).  In any event, the Veteran has not demonstrated any 
prejudice with regard to the content of any notice.  See Shinseki 
v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law 
imposing a presumption of prejudice on any notice deficiency, and 
clarifying that the burden of showing that an error is harmful, 
or prejudicial, normally falls upon the party attacking the 
agency's determination.)  See also Mayfield v. Nicholson, 444 
F.3d 1328, 1333-34 (Fed. Cir. 2006).  

The Board also finds that VA has complied with all assistance 
provisions of VCAA, to include substantial compliance with the 
instructions in the September 2010 Board Remand.  D'Aries v. 
Peake, 22 Vet. App. 97, 105 (2008).  The evidence of record 
contains the Veteran's service treatment records and post-service 
treatment records.  This matter was remanded to obtain private 
medical records from Dr. Lowe in Crescent City.  The VCAA letter 
requested that the Veteran complete a VA Form 21-4141, 
Authorization and Consent to Release Information; however, the 
Veteran did not respond.  While VA has a duty to assist the 
Veteran in the development of his claim, the Veteran has a duty 
to cooperate with VA.  See Wood v. Derwinski, 1 Vet. App. 190 
(1991).  The law also provides that a claimant for VA benefits 
has the responsibility to present and support the claim.  38 
U.S.C. § 5107(a).  The Board concludes that it has satisfied its 
duty to assist and in light of the Veteran's failure to respond 
there is no remaining duty under the VCAA to attempt to obtain 
the medical records.  There is otherwise no indication of 
relevant, outstanding records which would support the Veteran's 
claim.  38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3).  As 
the evidence does not establish competent evidence that the 
Veteran's claimed dental disability was incurred in or due to 
trauma in service, it is not necessary to obtain a VA medical 
examination or opinion.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 
3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 
(2006).

For all the foregoing reasons, the Board concludes that VA's 
duties to the Veteran have been fulfilled with respect to the 
issue in appellate status.

Criteria & Analysis

Applicable law provides that service connection will be granted 
if it is shown that the veteran suffers from disability resulting 
from an injury suffered or disease contracted in line of duty, or 
for aggravation of a preexisting injury suffered or disease 
contracted in line of duty, in the active military, naval, or air 
service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  That an injury 
occurred in service alone is not enough; there must be chronic 
disability resulting from that injury.  If there is no showing of 
a resulting chronic condition during service, then a showing of 
continuity of symptomatology after service is required to support 
a finding of chronicity.  38 C.F.R. § 3.303(b).  Service 
connection may also 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).  

Treatable carious teeth, replaceable missing teeth, dental or 
alveolar abscesses and periodontal disease will be considered 
service connected solely for the purpose of establishing 
eligibility for outpatient dental treatment as provided in § 
17.161 of this chapter, but not for purposes of compensation.  
See 38 C.F.R. § 3.381(a).

The Veteran claims entitlement to service connection for dental 
condition, to include periodontal disease, gum disease, cavities, 
root canals, implants and related dental problems.  The Veteran 
claims that he should be compensated for such dental disabilities 
as such conditions manifested in service.  Specifically, the 
Veteran contends that a Vietnamese dentist performed dental work 
on his teeth and he experienced pain.

Service treatment records contain a 'Dental' record which 
reflects that he underwent a dental examination at Fort Sill in 
October 1968, specifically "Type 3 Re-exam."  A 'Health Record 
- Abstract of Service' reflects 'Medical and Dental Activity' 
including treatment at the 'Dental Clinic #4' in October 1967, 
'Dental Clinic #1' at Fort Sill from January 1968 to October 
1968, and treatment in February 1969.  No reference is made to 
treatment by a Vietnamese dentist.  On a September 1969 Report of 
Medical History completed by the Veteran, he checked the 'No' box 
for 'severe tooth or gum trouble.'  The September 1969 Report of 
Medical Examination conducted for separation purposes reflects 
that teeth numbers 32, 25, 16, and 17 were restorable teeth.  The 
examiner noted "CL-3" with regard to 'Remarks and Additional 
Dental Defects and Diseases.'  There is no indication that the 
Veteran's in-service dental treatment was anything but routine in 
nature.  

While service connection may be established for treatment 
purposes for these conditions, the regulations listed above 
clearly prohibit service connection for purposes of compensation 
where the disability involves replaceable missing teeth or 
periodontal disease.  38 C.F.R. § 3.381.  As neither condition is 
recognized by the applicable regulations as a disability for 
which VA compensation may be granted, the veteran's claim is not 
warranted.  See 38 C.F.R. § 3.381 (periodontal disease is not a 
disability for compensation purposes).  Service treatment records 
do not reflect that any dental treatment rendered during service 
was due to any in-service trauma, nor due to combat, nor does the 
Veteran allege any trauma to the teeth, other than experiencing 
pain when a Vietnamese dentist rendered treatment.  Additionally, 
there is no evidence that the Veteran was a prisoner of war.  See 
38 C.F.R. § 3.381(b).  The only dental treatment rendered was for 
periodontal disease and carious teeth.  Service connection for 
periodontal disease for compensation purposes is not legally 
permitted, and to that extent, as a matter of law this claim must 
be denied.  Sabonis v. Brown, 6 Vet. App. 426 (1994).

As noted, there was no evidence of any in-service dental trauma 
which resulted in residuals, additional loss of teeth, malunion 
or nonunion of the maxilla, or loss of body of the maxilla or 
mandible.  See generally, VAOPGCPREC 5-97; 38 C.F.R. 4.150, 
Diagnostic Codes 9913-9916.  Consequently, there is no basis for 
entitlement to service connection for residuals of dental 
condition for compensation purposes.

The Veteran may wish to contact the VA dental clinic for further 
information regarding outpatient dental treatment.


ORDER

Entitlement to service connection for dental disability is 
denied.



____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs