Citation Nr: 1124050 Decision Date: 06/23/11 Archive Date: 06/29/11 DOCKET NO. 08-23 376 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Togus, Maine THE ISSUE Entitlement to payment or reimbursement for dental expenses incurred on May 31, 2007, on June 8, 2007, and on November 29, 2007. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1969 to August 1970, July 1983 to December 1983, September 1998 to June 1999, June 2001 to January 2002, January 2005 to August 2005, and October 2005 to December 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal from September 2007 and December 2007 decisions of the Togus, Maine, Department of Veterans Affairs (VA) Medical Center (MC). In December 2009, the Veteran testified before the undersigned during a videoconference hearing. During the hearing, the undersigned identified the issues on appeal, and noted what pertinent evidence was outstanding and what evidence might assist in substantiating the claims. Additionally, the Veteran through his testimony, with the assistance of his representative, demonstrated actual knowledge of the elements necessary to substantiate the claims. See Bryant vs. Shinseki, 23 Vet. App. 488 (2010). A copy of the hearing transcript has been associated with the claims folder. The Board remanded the matter in October 2009 for additional development to obtain copies of a July 2007 VA dental examination and a July 2007 authorization letter. Copies of those documents are now associated with the health record. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). FINDINGS OF FACT 1. The Veteran was authorized to receive one-time dental service, including a full dental examination, x-rays, cleaning, and treatment plan, if necessary, from a local dentist of his choice. 2. In May 2007, the Veteran received a comprehensive oral evaluation and x-rays, and a proposed treatment plan, which cost greater than $1000.00, was submitted, and it was recommended that the Veteran receive treatment to address his periodontal disease prior to receiving restorative dentistry. 3. VA authorized restorative dentistry on teeth # 9 and #20. 3. The Veteran received specialized periodontal cleaning (scales and root plane) on May 31, 2007, on June 8, 2007 and on November 29, 2007, and there is medical evidence which established that this treatment should be performed prior to the restorative dental treatment for tooth # 9 and tooth #20. 4. The pertinent evidence is, at least, in relative equipoise on the question of whether the dental treatment was necessary prior to receiving the authorized restorative dentistry. CONCLUSION OF LAW The criteria are met for payment or reimbursement for dental expenses incurred on May 31, 2007, on June 8, 2007 and on November 29, 2007. 38 U.S.C.A. §§ 1703(a), 1712, 1725, 1728, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 17.52(a), 17.161 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION 1. VA's Duty to Notify and Assist As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist Veterans in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Here, the Board is approving full payment of the unauthorized private medical expenses in question. So the Board need not determine whether there has been compliance with these preliminary notice and duty to assist provisions of the VCAA because this determination is ultimately inconsequential. 2. Entitlement to Payment or Reimbursement of Dental Expenses The Veteran seeks payment or reimbursement for dental treatment he received from a private dentist on May 31, 2007, on June 8, 2007, and on November 29, 2007, that VA has determined was not authorized and was not conducted in an emergency. In this case, it appears that the Veteran was determined to be eligible for a one-time VA dental service and treatment, because he had a dental condition that existed at the time of release from active service and he was not provided with a complete dental examination and required dental treatment prior to his separation from service in December 2006. See 38 U.S.C.A. §§ 1712(a)(1)(B) and 38 U.S.C.A. § 1712(b); 38 C.F.R. § 17.161(b)(1)(i),(Class II). VA law provides that outpatient dental service and treatment may be authorized by the Chief, Dental Service, for beneficiaries defined in 38 U.S.C.A. § 1712(b) for any treatment indicated as reasonably necessary. 38 C.F.R. § 17.161(b)(1)(i),(Class II). The total amount that VA my expend for furnishing outpatient dental services, treatment, or related dental appliances to a veteran through private facilities for which VA has contracted, during any twelve-month period, may not exceed $1,000, unless VA determines, prior to the furnishing of such services, treatment, or appliances and based on an examination of the veteran by a VA dentist (or a dentist under a contract or fee arrangement with VA), that the furnishing of such services, treatment, or appliances at such cost is reasonably necessary. 38 U.S.C.A. § 1712(a)(3). Under 38 U.S.C.A. § 1728, a veteran may be entitled to payment or reimbursement of unauthorized medical expenses incurred at a non-VA facility. However, under that statute, the services must be rendered in a medical emergency of such nature that delay would have been hazardous to life or health. See 38 U.S.C.A. § 1728; 38 C.F.R. § 17.120; see also Zimick v. West, 11 Vet. App. 45, 49 (1998). Here, the Veteran does not allege, and the evidence does not show that he received specialized periodontal cleaning on May 31, 2007, June 8, 2007, and November 29, 2007, in a medical emergency where delay would have been hazardous to life or health. In this case, the Veteran seeks payment or reimbursement for dental expenses incurred on May 31, 2007, June 8, 2007, and November 29, 2007. He asserts that he had received prior authorization for the dental treatment received on those dates. The Veteran contends that the scale and roots cleaning he received on those dates was medically necessary prior to his receiving the authorized restorative dental treatment. A review of the Veteran's service dental records shows he had been assessed with a dental condition prior to his separation from service. A November 2006 service dental examination shows that the Veteran had incurred significant teeth wearing as a result of stress when he was mobilized in Iraq and it affected twelve of his teeth (molars). It was also noted that the Veteran had periodontal disease with base loss of the maxillary teeth. No subsequent dental treatment was received prior to the Veteran's separation from service in December 2006. Shortly after the Veteran's separation from service, he applied to receive his one-time dental service. In a March 2007 letter, VA informed the Veteran that he was eligible for one-time dental service and he was authorized to receive a full dental examination, x-rays, cleaning and a treatment plan, if necessary. The letter also informed the Veteran the proposed treatment plan would be reviewed by the VA dental clinic for approval of appropriate services and it further stated, "Do not have any non-emergency treatment completed before this written authorization." The Veteran underwent a private comprehensive oral evaluation, including x-rays, on May 16, 2007. The following day, the private dentist submitted a proposed treatment plan that included treatment for periodontal disease (scales and root plane cleaning treatment) and other dental treatment that totaled more than $1000.00. In a letter accompanying the proposed treatment plan, the private dentist recommended that the Veteran receive treatment for the periodontal disease prior to receiving any restorative dental work. The Veteran underwent scales and root plane treatment on May 31, 2007. In June 2007, VA sent a notice letter informing the Veteran that the law required VA to conduct a second opinion dental examination where the fee dental treatment will exceed $1000.00 and that VA would notify the Veteran as to the date and time for the examination. He was informed that his dental care was not authorized until this second opinion examination was completed. The Veteran underwent a second scales and root plane cleaning treatment on June 8, 2007. The Veteran attended a VA dental examination on July 31, 2007, and he was authorized to received treatment on tooth #9 (crown) and on tooth # 20 (resin filing). There was no indication in the second opinion dental VA examination report on whether the periodontal treatment (scale and root cleaning) was necessary prior to the authorized restorative dental treatment. In September 2007 letter, the Veteran was informed that payment would not be made for the dental treatment received on May 31, 2007 and June 6, 2007 because it was unauthorized. The Veteran underwent a third scales and root plan cleaning treatment on November 29, 2007, and he was informed in a December 2007 letter that payment would not be made because the treatment was unauthorized. Based on the foregoing facts, the Board concludes, after resolving all reasonable doubt in favor of the Veteran, that the private dental treatment received on May 31, 2007, June 8, 2007, and November 29, 2007 was necessary prior to receiving the authorized restorative dental treatment. Here, the service dental records show that periodontal disease was diagnosed along with the other dental issues in service. He separated from service in December 2006 prior to resolving his dental problems, including treatment for periodontal disease. The Veteran was later authorized to receive his one-time outpatient full dental examination, x-rays, cleaning and a treatment plan, if necessary. A proposed treatment plan was submitted and his private dentist determined that the specialized periodontal cleaning was needed prior to any restorative dentistry. The Board acknowledges that the second opinion VA dentist only authorized dental treatment on teeth # 9 and #20. However, there is no indication in that VA second opinion report on whether any periodontal treatment (including the two treatments already received) was necessary prior to the authorized restorative dental treatment on teeth # 9 and #20. Essentially, the record does not contain any medical statement that shows the scale and root plane cleaning received on May 31, 2007, June 8, 2007, and November 29, 2007 was not necessary. Although further inquiry could be undertaken with a view towards development of the claim so as to obtain a VA medical opinion regarding the necessity of the scales and root plane cleaning prior to the authorized restorative dental treatment, the Board finds that no such further development is required. Under the benefit of the doubt rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the appellant shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). In short, the record shows that the Veteran was eligible for one-time treatment for dental conditions that were not resolved prior to his separation, including treatment for periodontal disease, and the private dentist's statement that the specialized cleaning was needed prior to restorative dentistry. The record lacks any persuasive and competent evidence to the contrary. Therefore, the Board concludes that the appeal must be granted. ORDER Entitlement to payment or reimbursement for dental expenses incurred on May 31, 2007, on June 8, 2007 and on November 29, 2007, is granted. ____________________________________________ C. L. KRASINSKI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs