Citation Nr: 1122807	
Decision Date: 06/14/11    Archive Date: 06/28/11

DOCKET NO.  10-35 386	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1.  Whether new and material evidence has been received to reopen service connection for a dental disability. 

2.  Entitlement to service connection for multiple myeloma, to include as due to chemical exposure.

3.  Entitlement to service connection for residuals of colon rectal cancer, to include as due to chemical exposure. 

4.  Entitlement to service connection for diabetes mellitus, type II, to include as due to chemical exposure.  


REPRESENTATION

Appellant represented by:	Missouri Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran and his daughter


ATTORNEY FOR THE BOARD

Patricia Veresink, Associate Counsel


INTRODUCTION

The Veteran had active duty service from December 1952 to November 1954.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.  The Veteran testified at a Board hearing at the RO in March 2010 before the undersigned Veterans Law Judge.  A copy of the transcript of that hearing has been associated with the record on appeal.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The issues of service connection for multiple myeloma, residuals of colon rectal cancer, and diabetes mellitus, type II, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  A March 2008 RO rating decision denied service connection for a dental condition; the Veteran filed a timely notice of disagreement regarding that decision, a Statement of the Case was issued in June 2008, but the Veteran did not submit a substantive appeal.

2.  Evidence that relates to an unestablished fact necessary to substantiate the claim and that raises a reasonable possibility of substantiating the claim of service connection for a dental disability has not been received since the March 2008 rating decision.


CONCLUSIONS OF LAW

1.  The March 2008 rating decision denying service connection for a dental condition became final.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2007); currently, 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2010).

2.  New and material evidence has not been received since the March 2008 denial of service connection for a dental condition; therefore, the claim for service connection for a dental disability is not reopened.  38 U.S.C.A. §§ 1110, 1131, 5103, 5108 (West 2002); 38 C.F.R. §§ 3.156, 3.303 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010), 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).

The record shows that through a VCAA letter dated August 2009 the Veteran was informed of the information and evidence necessary to substantiate the claim to reopen service connection.  The Veteran was also advised of the types of evidence VA would assist in obtaining, as well as the Veteran's own responsibilities with regard to identifying relevant evidence.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet.App. 370 (2002).

The United States Court of Appeals for Veterans Claims (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits.  The VCAA letter to the appellant was provided in August 2009 prior to the initial unfavorable decision in December 2009.

Further, the notice requirements apply to all five elements of a service connection claim: 1) veteran status, 2) existence of a disability, 3) a connection between the veteran's service and the disability, 4) degree of disability, and 5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).   In this case, the August 2009 letter gave notice of the types of evidence necessary to establish a disability rating and effective date for the disability on appeal.   

In Kent v. Nicholson, 20 Vet.App. 1 (2006), the Court addressed directives consistent with VCAA with regard to new and material evidence.  The Court stated that in order to successfully reopen a previously and finally disallowed claim, the law requires the presentation of a special type of evidence-evidence that is both new and material.  The terms "new" and "material" have specific, technical meanings that are not commonly known to VA claimants.  Because these requirements define particular types of evidence, when providing the notice required by the VCAA it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of evidence that must be presented.  This notice obligation does not modify the requirement that VA must provide a claimant notice of what is required to substantiate each element of a service-connection claim.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The August 2009 letter noted the basis of the prior final rating decision, the evidence needed to reopen the claim, and the evidence required regarding the underlying service connection claim.  Therefore, the August 2009 letter was in compliance with the Kent directives.

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the Board personal hearing, the Veterans Law Judge (VLJ) noted the elements of the claims that were lacking to substantiate the claim of service connection.  The Veteran was assisted at the hearing by an accredited representative from the Missouri Veterans Commission.  The representative and the VLJ asked questions to ascertain the extent of any in-service complaints, events, or injuries, and whether the Veteran's current dental disability is related to his service.  They also asked questions to draw out the current state of the Veteran's dental disability.  No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative.  The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim of service connection for a dental disability.  Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

As the Board is not reopening the claim of service connection in this case, a VA medical examination is not necessary.  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).  This claim is essentially being denied as a matter of law.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  None of the relevant facts are in dispute, the Veteran is not entitled to the benefit under the law and regulations.  For all the foregoing reasons, the Board concludes that VA's duties to the claimant have been fulfilled with respect to all issues on appeal.


Reopening Service Connection for a Dental Disability

The Veteran's claim to reopen involves an underlying claim of service connection for a dental disability.  Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from a 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, 1131 (West 2002); 38 C.F.R. § 3.303 (2010).  That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury.  With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  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) (2010).  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) (2010).

The Board notes that service connection for a dental disability may be granted for compensation purposes or for treatment purposes.  Any claim of service connection for a dental disability will be treated as a claim for both purposes.  When considering service connection for compensation purposes, dental and oral disabilities are rated under 38 C.F.R. § 4.150.  Specifically, Diagnostic Code 9913 applies to a dental service connection claim involving teeth.  That regulation only allows service connection for loss of teeth when it involves loss of substance of the body of the maxilla or mandible due to trauma or disease and not to the loss of the alveolar process as a result of periodontal disease.  38 C.F.R. § 4.150 (2010).  VA regulations hold, however, that replaceable missing teeth may be considered service connected solely for the purposes of determining entitlement to dental examination(s) or outpatient dental treatment.  38 C.F.R. § 3.381 (2010); Simington v. West, 11 Vet. App. 41 (1998).

The rating activity should consider each defective or missing tooth and each disease of the teeth and periodontal tissues separately to determine whether the condition was incurred or aggravated in line of duty during active service and, when applicable, to determine whether the condition is due to combat or other in-service trauma, or whether the Veteran was interned as a POW.  See 38 C.F.R. § 3.381(b) (2010).

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) (2010).  Trauma, as defined for purposes of dental treatment eligibility, connotes damage caused by the application of sudden, external force, brought to bear outside a clinical setting sustained a sudden trauma; for these purposes, the term "service trauma" does not include the intended effects of therapy or restorative dental care and treatment provided during a Veteran's military service.  38 C.F.R. § 3.306(b)(1) (2010); VAOGCPREC 5-97; see also Nielson v. Shinseki, 607 F.3d 802, 808-09 (2010) (holding that "service trauma" in 38 U.S.C. § 1712(a)(1)(C) means an injury or wound produced by an external physical force during the service member's performance of military duties; this definition excludes the intended result of proper medical treatment and psychological stress not the result of malpractice).

Otherwise, a veteran may be entitled to service connection for dental conditions including treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal (i.e., gum) disease, for the sole purposes of receiving VA one-time outpatient dental services and treatment, if certain criteria are met.  See 38 U.S.C.A. § 1712 (West 2002); 38 C.F.R. §§ 3.381, 17.161 (2010).

Service connection for general dental treatment, more than one time, applies to Veteran's who (a) have been granted service connection under 38 C.F.R. § 4.150, had Prisoner of War (POW) status, (b) have a dental condition that has been professionally determined to be aggravating a service-connected disability, (c) have a 100 percent schedular rating or have been granted a total disability rating due to individual unemployability (TDIU), (d) are participating in a vocational rehabilitation program under 38 U.S.C.A. § 31, (e) are scheduled for admission or receiving care under 38 U.S.C.A. § 17 and require dental care that is medically necessary, (f) are receiving authorized VA hospital care and require reasonably necessary outpatient dental care to complete that treatment, (g) are receiving hospital, nursing home, or domiciliary care pursuant to 38 C.F.R. §§ 17.46 and 17.47 and require dental services necessary to the patient's overall hospital, nursing home, or domiciliary care, or (h) are service-connected for a noncompensable dental condition or disability adjudicated as resulting from combat wounds or service trauma.  38 C.F.R. §§ 17.161, 17.163, 17.166 (2010).

Service connection for one time dental treatment for veterans separated before October 1, 1981 applies to veterans who have a noncompensable dental condition as listed in 38 C.F.R. § 3.381, which includes treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease, and meet the following criteria: (a) the Veteran was discharged or released under conditions other than dishonorable, (b) the Veteran served on a period of active military, naval, or air service of 180 days or more, (c) application is made within one year after such discharge or release, and (d) VA dental examination is completed within 14 months after discharge or release unless delayed through no fault of the Veteran.  38 C.F.R. § 17.161 (2010).

A review of the record shows that a claim for service connection for a dental disability was originally denied in March 2008.  The Veteran was informed of that decision in a March 2008 notification letter.  The Veteran filed a notice of disagreement regarding the decision within one year from the date of the notification of the rating decision to appeal the denial of the claim.  A statement of the case was issued in June 2008.  The Veteran did not submit a substantive appeal regarding this decision.  Therefore, that decision became final.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2007); currently, 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2010).

As a general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010).  When an appellant seeks to reopen a final decision, the first inquiry is whether the evidence presented or secured after the last disallowance is "new and material."  
Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers.  Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a) (2010).

When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed.  Justus v. Principi, 3 Vet. App. 510 (1992).  In order for evidence to be sufficient to reopen a previously denied claim, it must be both new and material.  If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened.  Smith v. West, 12 Vet. App. 312 (1990).  Furthermore, "material evidence" could be "some new evidence [that] may well contribute to a more complete picture of the circumstances surrounding the origin of the Veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision."  Hodge v. West, 155 F. 3d 1356, 1363 (Fed. Cir. 1998).  If it is determined that new and material evidence has been received, the claim must be reopened and VA may then proceed to the merits of the claim on the basis of all the evidence of record.  The Court has held that there is a very low threshold for reopening claims, stating that the requirements in the regulations that the evidence "raises a reasonable possibility of substantiating the claim" should be read as enabling reopening rather than precluding it.  Shade v Shinseki, 24 Vet. App. 110 (2010).

In this case, the RO denied service connection for a dental disability as replaceable missing teeth are not considered a disability subject to compensation by law.  The facts in this case are not in dispute.  The evidence did not show any bone loss or dental trauma.   Regarding the current claim on appeal, the RO denied reopening in December 2009, finding that new and material evidence had not been received, and the present appeal ensued.  Regardless of the RO's determination, the Board is not bound by that determination as to whether the claim should be reopened, and must nevertheless consider whether new and material evidence has been received.  Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).

Since the prior final rating decision in October 1994, the Veteran has submitted additional evidence, including testimony during a March 2011 Board hearing.  At that time, the Veteran again indicated that he had some cavities upon entry into service.  The Veteran's teeth decayed during service and they pulled almost all of the Veteran's teeth.  He went to VA for stomach problems within a year after separating from service, but was not provided with any dentures.  This evidence constitutes new evidence as it was not previously submitted to agency decisionmakers.    

However, the evidence is not material.  The RO denied the Veteran's claim as a matter of law.  The Board does not dispute the Veteran's version of the facts.  He had cavities during service and had most of his teeth pulled at that time.  However, the Veteran does not meet the requirements for compensation or treatment by law.  The law has not changed between the previous denial of service connection and the present time.  Even considering the finding in Shade v Shinseki, 24 Vet. App. 110 (2010), providing a very low threshold for reopening claims, the Board notes that the Veteran's testimony does not enable reopening.  The Veteran's testimony cannot change the law or the rules regarding basic eligibility for the benefit he seeks, and does not provide any material information that might allow the Veteran to apply his facts to the current regulations.

Therefore, the Board finds that new and material evidence has not been received to reopen the previously denied claim of service connection for a dental disability for either treatment or compensation purposes.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).


ORDER

New and material evidence having not been received, service connection for a dental disability is not reopened and to that extent the appeal is denied.


REMAND

The issues of service connection for multiple myeloma, residuals of colon rectal cancer, and diabetes mellitus, type II, to include as due to chemical exposure, are remanded for further development.  The Veteran has asserted that his current disabilities are related to his exposure to chemicals during service.  The Veteran has provided lay evidence that he was exposed to white phosphorus, napalm, and DDT, including photos of him delousing Korean POWs with DDT.  The Veteran also submitted internet articles describing the possible health risks of white phosphorous, napalm, and DDT.

The Veteran was not afforded a VA examination to determine the etiology of his current disabilities.  In light of the holding in McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Board finds that an examination is required.  McLendon provides that in disability compensation (service connection) claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim.  

The standards of McLendon are met in this case.  The Veteran provided evidence of current disabilities, including medical treatment records.  The Veteran also provided evidence of exposure to chemicals in the form of lay statements and photographs.  The Veteran also provided articles that indicate a possible association between the chemicals and his disabilities.  The Board finds however that the general medical articles provide insufficient evidence to address the Veteran's specific case.   Therefore, a VA examination is necessary.  

Accordingly, the issues of service connection for multiple myeloma, residuals of colon rectal cancer, and diabetes mellitus, type II are REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010).  Expedited handling is requested.)

1. The Veteran should be afforded a VA examination to ascertain the nature and etiology of his multiple myeloma, residuals of colon rectal cancer, and diabetes mellitus.  The relevant documents in the claims file, to include service treatment records, should be made available to and reviewed by the examiner in connection with the new examination.  Any tests deemed medically advisable should be accomplished.  The examiner should clearly address the following:

a.)  As to his multiple myeloma, the examiner should offer an opinion as to whether it is at least as likely as not (a 50 percent or higher degree of probability) that the Veteran's disability had its onset during service or is causally or etiologically related to service.  The examiner should specifically discuss the Veteran's reported exposure to white phosphorous, napalm, and DDT during service and should address the lay articles contained in the claims file.

b.)  As to his residuals of colon cancer, the examiner should offer an opinion as to whether it is at least as likely as not (a 50 percent or higher degree of probability) that the Veteran's disability had its onset during service or is causally or etiologically related to service.  The examiner should specifically discuss the Veteran's reported exposure to white phosphorous, napalm, and DDT during service and should address the lay articles contained in the claims file.

c.)  As to his diabetes mellitus, type II, the examiner should offer an opinion as to whether it is at least as likely as not (a 50 percent or higher degree of probability) that the Veteran's disability had its onset during service or is causally or etiologically related to service.  The examiner should specifically discuss the Veteran's reported exposure to white phosphorous, napalm, and DDT during service and should address the lay articles contained in the claims file.

A complete rationale should be given for any opinion provided.

2.  After completion of the above and any other development the RO/AMC should deem necessary, the RO/AMC should review the expanded record and readjudicate the claim.  If the claims remain denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case, and should be afforded an opportunity to respond.  Thereafter, the case should be returned to the Board for appellate review, if otherwise in order.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim.  See 38 C.F.R. § 3.655 (2010).

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. 2010).



______________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs