Citation Nr: 1126746 Decision Date: 07/18/11 Archive Date: 07/21/11 DOCKET NO. 04-15 029 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for a dental disorder other than for teeth #1, 7, 9, 10, 18, 31, and 32 for VA compensation purposes. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Kroes, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1943 to December 1945. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2002 decision of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2006, the Board denied the Veteran's claim for service connection for a dental disorder for VA compensation purposes. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2009 memorandum decision, the Court vacated the Board's determination and remanded the matter for further adjudication. In January 2010 and March 2011, the Board remanded the issue of entitlement to service connection for a dental disorder other than for teeth #1, 7, 9, 10, 18, 31, and 32 for VA compensation purposes for further evidentiary development. The requested development was completed, and the case has now been returned to the Board for further appellate action. As noted by the Board previously, review of the claims folder indicates that, by an August 1948 rating action, the RO granted service connection for teeth #1, 7, 9, 10, 18, 31, and 32. This grant appears to have been rendered for VA compensation purposes as it lists "0%" on the sheet. Specifically, in the letter notifying the Veteran of that decision, the RO also informed him that, "[i]f at any time . . . [he was] in need of dental treatment," he should contact the local VA Chief of Dental Service for an appointment. See 38 C.F.R. § 17.161(c) (2010) (which stipulates that the significance of a finding that a dental condition is due to service trauma is that a veteran will be eligible for VA dental treatment for the condition, without the usual restrictions of a timely application and one-time treatment). A subsequent rating in 1949 was noted as being for outpatient treatment purposes only. Importantly, beginning with the rating decision dated in August 2008, the RO began carrying forward the conclusions from the August 1948 rating decision and listed teeth #1, 7, 9, 10, 18, 31, & 32 as being "injured by trauma in service". Consequently, the Board has defined the issue currently on appeal as entitlement to service connection for a dental disorder other than for teeth #1, 7, 9, 10, 18, 31, & 32 for VA compensation purposes. The Board also notes that as the Veteran has been awarded a total disability rating based on individual unemployability, he is eligible for any needed dental treatment. See 38 C.F.R. § 17.161(h) (2010). 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). FINDINGS OF FACT 1. The Veteran sustained a traumatic blow to his mouth during his combat service in Europe. 2. The Veteran received dental treatment during service, including fillings; however, the Veteran does not have tooth loss resulting from loss of substance of body of the maxilla or mandible due to the traumatic blow to his mouth. 3. The competent evidence indicates that the Veteran does not have a dental disability other than tooth loss that is related to his military service. CONCLUSION OF LAW The criteria for establishing service connection for compensation purposes for a dental disorder other than for teeth #1, 7, 9, 10, 18, 31, and 32 have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.381, 4.150 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2010)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2010). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, August 2003, March 2010, and March 2011 letters collectively provided notice regarding what information and evidence is needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The March 2010 and March 2011 letters advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The claim was last readjudicated in April 2011. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA treatment records and examination reports, and a buddy statement. In addition, the Board notes that the case was remanded in January 2010 and March 2011 for additional VCAA notification and so that a VA examination could be undertaken and a medical opinion obtained. The Veteran was afforded VA examinations in April 2010, December 2010, and April 2011. The dentist who examined the Veteran in April 2011 provided the requested medical opinion. The VCAA notification requested by the Board was prompted by the Court's May 2009 memorandum decision, in which the Court held that the notice previously provided did not inform the Veteran that he could support his claim with lay evidence, including statements of other veterans who could possibly corroborate his asserted injury, or that evidence relating to combat or trauma was particularly relevant to his claim for service connection for a dental condition. The Court also held that he was not adequately advised of the types of information that might substantiate his claim. Specifically, the Court noted that the Veteran was not informed that he could submit lay evidence demonstrating that he engaged in combat and sustained a dental injury during his service. In March 2010 and March 2011 notification letters, the Veteran was asked to submit evidence showing that a dental disorder relating to combat trauma existed from military service to the present. He was also told that he may submit his own statement, or statements from people who have witnessed how his claimed disabilities affect him. Accordingly, the requirements of the remand were ultimately accomplished and the prior remand instructions were substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998). It is also noted that VA has conceded the Veteran's assertion that he was struck in the mouth with a rifle butt; thus, any deficiency in notice regarding substantiating a service trauma to the mouth is not prejudicial. As discussed above, the Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument and presenting for VA examinations. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2010). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Under current VA regulations, compensation is only available for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla. Compensation is available for loss of teeth only if such is due to loss of substance of body of maxilla or mandible due to trauma or disease such as osteomyelitis, but not periodontal disease. 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 disease, for the sole purposes of receiving VA outpatient dental services and treatment, if certain criteria are met. 38 U.S.C.A. § 1712 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.381, 17.161 (2010). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran asserts that he has dental disorder other than for teeth #1, 7, 9, 10, 18, 31, and 32. He contends that he lost teeth in his maxillary left quadrant as a result of having been hit in his face with a rifle butt during combat service in 1945. In a statement received at the RO in September 2009, a fellow serviceman explained that, during a night mission in the Ardennes in 1945, the Veteran was hit in the mouth or face with a hard object-possibly a rifle. Under the law, VA is required to accept a combat veteran's statements as to injuries sustained in combat, so long as the statements are consistent with the circumstances, conditions, or hardships of the veteran's service and there no is clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2010). After a careful review of the claims folder, the Board finds that the Veteran's assertions that he sustained a traumatic blow to his mouth during his combat service in Europe are consistent with the circumstances of his conceded combat duty. Importantly, the claims folder contains no evidence refuting this assertion. Thus, the remaining question is if the Veteran has any recognized dental disability related to the traumatic blow to the mouth during service. The Veteran underwent several dental examinations during service. All of these examinations show a number of missing teeth; however, they are confusing in that later examinations show as present teeth that were earlier reported as missing. For example, an April 1944 report indicates that tooth 14L was missing and tooth 16L was present while a June 1945 report indicates that tooth 16L was missing and tooth 14L was present. It is important to note that the system used for numbering teeth has changed since the Veteran's discharge from service. In order to maintain consistency, from this point forward the Board will refer to the teeth using the current system for tooth identification. At induction, the Veteran was reportedly missing teeth #3, 16, 17, and 32. Subsequently, teeth #1, 14, 19, and 30 were additionally reported as missing during at least one examination. The Veteran was afforded a VA dental examination in May 2002. Examination revealed no functional impairment, although loss of teeth contributed to the inability to chew certain foods properly. The following teeth were listed as missing: #1, 12, 13, 14, 16, 17, and 32. Range of motion of the jaw was within normal limits and there was no bone loss of mandible, maxilla or hard palate. Moderate to advanced periodontitis was also noted. The dentist opined that there was no evidence to substantiate the claim of traumatic loss of teeth. As the May 2002 VA examiner's opinion was based on an inaccurate factual premise (regarding trauma) and included no rationale, the Board finds that the conclusion is of little probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300-01 (2008) (holding that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two). As noted above, the Board has accepted the Veteran's statement that he received a traumatic blow to the mouth during service as credible. The Veteran was afforded another VA examination in April 2010. The dentist noted that teeth #1, 3, 12, 13, 14, 16, 17, 29, and 32 were missing. It was also noted that maxillary and mandibular midlines did not coincide. The Veteran had no bone loss of the mandible, maxilla or hard palate. There was loss of alveolar bone related to the loss of teeth. In the section for the examiner's opinion, she noted that the Veteran was already eligible for dental treatment as he was rated as unemployable. It was also noted that the Board's determination regarding this claim will not change the level of dental care the Veteran receives. In closing, the dentist wrote that the Veteran should receive consideration for compensation because the VA clearly denied him the care for which he was eligible. In December 2010, a different VA dentist examined the Veteran and reviewed the April 2010 examination report. Examination revealed that the Veteran was missing teeth #1, 3, 12, 13, 14, 16, 17, and 32. The dentist noted that the Veteran was in satisfactory dental health. The dentist further stated that he "[does] not feel that [the Veteran] has a dental disability or qualifies for compensation and pension." The opinion offered by the dentist has been assigned little probative value as it contains no rationale. See Nieves-Rodriguez, 22 Vet. App. at 300-01. The Veteran was afforded a fourth VA dental examination in April 2011. Examination revealed no loss of bone of the maxilla, mandible, or hard palate. While the maxillary/mandibular midlines did not coincide, there was no malunion or nonunion of the maxilla or mandible. Neither was there limitation of motion at the temporomandibular articulation or evidence of osteoradionecrosis. The examiner, the Chief of a VA dental service, specifically noted that there was no tooth loss due to loss of substance of the body of maxilla or mandible (other than loss due to periodontal disease). There was also no deviation on opening, no tempomandibular joint crepitus, and all excursive movements were within normal limits. According to the dentist, the Veteran is essentially missing his posterior maxillary occlusion, and chews on the right side because he has more teeth on that side. There was some bone loss on the maxillae and mandible consistent with periodontitis. In summary, the examiner stated that there was no evidence that any dental condition existing today (other than teeth #1, 7, 9, 10, 18, 31, 32) is related to a traumatic event such as a maxillary left rifle butt blow. He commented that bone loss on the maxillary left was consistent with that of alveolar bone loss due to periodontitis, and in fact was similar to the right side which did not receive trauma. The examiner also opined that the teeth that were lost in the maxillae were lost most likely secondary to chronic periodontitis over the years. Regarding the midline shift, the examiner explained that patients frequently have midline shift due to loss of spacing during the eruption cycles of the permanent teeth without proper spacing placed by a dentist to maintain orthodontically the position for the erupting tooth. He noted that without the presence of any signs or symptoms visually or radiographically of malunion or nonunion, it would be speculation to assume the midline shift was secondary to trauma, especially without any osseous repositioning of the maxillae. He also opined that midline shift has little significance nor relationship to rifle butt injury without presence of malpositioning of left maxillae, condylar dysfunction or malpositioning and is likely related to dental malocclusion and eruption sequencing. In the June 2011 post-remand brief, the Veteran's representative appears to argue that the April 2011 VA opinion is inadequate as the examiner indicated he could not resolve an issue without resort to mere speculation. The Board recognizes that before relying on an examiner's conclusion that a diagnosis or etiology opinion is not possible without resort to speculation the Board must consider such factors as whether the examiner explained the basis for such an opinion or the basis must be otherwise apparent in the review of the evidence, whether the opinion is based on sufficient facts or data, whether the examiner based the opinion on the limitations of knowledge in the medical community at large, and whether the examiner identified what facts cannot be determined. Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). While the examiner in April 2011 used the word "speculation" in his opinion, a reading of the entire document reflects that the examiner did in fact offer an opinion on the question of whether the Veteran had a dental disorder (other than for teeth #1, 7, 9, 10, 18, 31, and 32) related to being hit in the face with a rifle butt. The examiner clearly states that the Veteran does not have any tooth loss due to bone loss of the maxilla or mandible (other than due to periodontal disease) or malunion or nonunion of maxillae or mandible, that there is "[n]o evidence that any dental condition existing today (other than #1, 7, 9, 10, 18, 31, 32) is related to a traumatic event such as a maxillary left rifle butt blow", and that he "find[s] it unlikely to assume that any midline shift such as this is related to maxillary trauma without greater trauma to the teeth in the area and malposition of the remaining segment." The evidence indicates that the Veteran has lost a number of teeth throughout the years. However, the preponderance of the evidence, specifically the April 2011 VA opinion, indicates that the Veteran has not lost any teeth due to bone loss of the maxilla or mandible due to trauma. The Board recognizes that some bone loss (alveolar bone loss) is shown; however, according to the dentist who examined the Veteran in April 2011, the bone loss is due to periodontitis rather than trauma. The Note to Diagnostic Code 9913 specifically states that the ratings only apply to bone loss through trauma or disease, and not to the loss of the alveolar process as a result of periodontal disease, since such loss is not considered disabling. See 38 C.F.R. § 4.150. The Board has afforded the April 2011 VA opinion high probative value as it was made after a review of the relevant evidence and examination of the Veteran, and contains a clearly-stated rationale for the opinions offered. There are no medical opinions in conflict with the April 2008 opinion. Given the above, the Board finds that the Veteran does not have tooth loss resulting from loss of substance of body of the maxilla or mandible due to trauma or disease (such as osteomyelitis) and service connection for loss of teeth is not warranted. The medical evidence also reflects that the Veteran's maxillary/mandibular midlines do not coincide. In April 2011, the VA examiner opined that this was likely related to dental malocclusion and eruption sequencing, rather than trauma from a rifle butt blow. Again, the examiner offered a clearly-stated rationale for this opinion and the Board has afforded it high probative value. There are no other medical opinions in conflict with the April 2011 opinion. The Veteran does have dental caries on several teeth; however, treatable carious teeth will be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment. See 38 C.F.R. § 3.381(a) (2010). Thus, compensation is not warranted for the Veteran's dental carries. While the Veteran requests compensation for dental disabilities, he is not shown to possess any specialized training in the medical field; thus, he is only competent to testify as to symptoms and not to provide a medical diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In this case, the Veteran was afforded multiple VA examinations and a medical opinion was ultimately obtained from a dentist based on a review of the evidence (including the Veteran's statements and diagnostic testing) and an examination. The medical findings are given greater probative weight than any lay contention that the Veteran has tooth loss due to bone loss due to trauma or a maxillary/mandibular midline shift due to trauma as such an etiology opinion requires medical expertise to determine. In summary, the Veteran does not have tooth loss due to bone lose or any other dental disability (for VA compensation purposes) due to trauma incurred when he was hit in the mouth with a rifle butt. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for a dental disorder other than for teeth #1, 7, 9, 10, 18, 31, and 32 for VA compensation purposes is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs