Citation Nr: 1223970 Decision Date: 07/11/12 Archive Date: 07/18/12 DOCKET NO. 10-44 332 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a dental condition. 2. Entitlement to service connection for vision loss. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from October 1954 to August 1956. This matter comes before the Board of Veterans Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. A claim for service connection for dental disability is also considered a claim for VA outpatient dental treatment. Mays v. Brown, 5 Vet. App. 302, 306 (1993). In dental claims, the RO adjudicates the claim for service connection and the VA Medical Center adjudicates the claim for outpatient treatment. The claim for service connection for a dental disorder for obtaining VA outpatient dental treatment was REFERRED by the RO to the VA Medical Center in White City. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran does not have a dental disorder that resulted from combat wounds or inservice trauma. 2. The Veteran currently is not shown to have an acquired eye disorder or more than an impairment of visual acuity due to refractive error. CONCLUSIONS OF LAW 1. The criteria for service connection for a dental disorder for purposes of compensation are not met. 38 U.S.C.A. §§ 1110, 1131, 1721, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.381, 4.150 (2011). 2. The Veteran does not have an acquired eye disability due to disease or injury that was incurred in or aggravated by active service; refractive error is not a disease or injury within the meaning of applicable legislation. 38 U.S.C.A. §§ 1110 , 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's 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) (2011), 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 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. 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). The RO provided VCAA notice to the Veteran in December 2008 and September 2009. This notice letter addressed the elements of his claims for service connection and informed him of his and VA's respective duties for obtaining evidence. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes obtaining "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2) , as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1) . VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board also finds that there has been compliance with the VCAA assistance provisions. Unfortunately, the Veteran's service treatment records are not available for review and are presumed destroyed in a fire at the National Personnel Records Center in St. Louis, Missouri, in 1973. Accordingly, VA has a heightened duty to assist the Veteran in developing this claim. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The RO has obtained the available post-service medical records identified by the Veteran. The Board acknowledges that the Veteran did not receive a VA examination for his claims for service connection for a dental disorder and vision loss. However, the Board finds that a VA examination is not necessary to decide those claims, as the standards of the Court's recent decision in McLendon v. Nicholson, 20 Vet. App. 79 (2006), have not been met. Under McLendon, VA must provide a medical examination in a service connection claim 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. Id. at 81. The Veteran has indicated that his upper teeth were extracted during service. The Veteran does not allege he suffered any in-service dental trauma. As will be explained in more detail below, service connection for compensation purposes is not available for a dental condition other than one resulting from dental trauma. VA's General Counsel held that dental treatment of teeth, even extractions, during service did not constitute dental trauma. See VAOPGCPREC 5-97. In addition, as VA regulation does not provide for compensation for refractive error of the eye, a VA examination is not necessary to decide the claim for service connection for vision loss. In light of the dispositive nature of the law in this case, the Board finds a VA examination and medical opinion would serve no useful purpose. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing circumstances when a VA examination is required); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (providing that where the law, and not the evidence, is dispositive of a claim, such claim should be denied because of the absence of legal merit or the lack of entitlement under the law). For the foregoing reasons, the Board finds that VA has satisfied the duties to notify and assist with respect to the claims being decided, and appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Analysis of Claims A. Dental Disability Dental disabilities are treated differently than medical disabilities in the VA benefits system. See 38 C.F.R. § 3.381. As provided by VA regulations, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not considered disabling conditions, but may be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment as provided in 38 C.F.R. §§ 3.381(a), 17.161. Service connection may be granted for a dental condition of each tooth and periodontal tissue shown by the evidence to have been incurred in or aggravated by service. When applicable, a determination will be made as to whether the condition is due to combat or other in-service trauma, or whether a veteran was interned as a prisoner of war (POW). 38 C.F.R. § 3.381(b). 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. VA O.G.C. Prec. Op. No. 5-97, 62 Fed. Reg. 15,566 (1997); see also 38 C.F.R. § 3.306(b)(1) . In determining service connection, the condition of teeth and periodontal tissues at the time of entry into active duty will be considered. 38 C.F.R. § 3.381(c). Treatment during service, including filling or extraction of a tooth, or placement of a prosthesis, will not be considered evidence of aggravation of a condition that was noted at entry, unless additional pathology developed after 180 days or more of active service. Id. The following principles apply to dental conditions noted at entry and treated during service: (1) Teeth noted as normal at entry will be service-connected if they were filled or extracted after 180 days or more of active service. (2) Teeth noted as filled at entry will be service-connected if they were extracted, or if the existing filling was replaced, after 180 days or more of active service. (3) Teeth noted as carious but restorable at entry will not be service-connected on the basis that they were filled during service. However, new caries that developed 180 days or more after such a tooth was filled will be service-connected. (4) Teeth noted as carious but restorable at entry, whether or not filled, will be service-connected if extraction was required after 180 days or more of active service. (5) Teeth noted at entry as non-restorable will not be service-connected, regardless of treatment during service. (6) Teeth noted as missing at entry will not be service-connected, regardless of treatment during service. 38 C.F.R. § 3.381(d) . The following will not be considered service-connected for treatment purposes: (1) Calculus; (2) Acute periodontal disease; (3) Third molars, unless disease or pathology of the tooth developed after 180 days or more of active service, or was due to combat or in-service trauma; and (4) Impacted or malposed teeth, and other developmental defects, unless disease or pathology of these teeth developed after 180 days or more of active service. 38 C.F.R. § 3.381(e) . Teeth extracted because of chronic periodontal disease will be service-connected only if they were extracted after 180 days or more of active service. 38 C.F.R. § 3.381 (f). The Veteran has indicated that all of his top teeth were pulled when he was in basic training, and a plate was put in. The Veteran's report of his in-service treatment is credible. However, even assuming the Veteran did have teeth pulled in basic training, such treatment does not support a finding of dental trauma. Therapeutic and restorative dental treatment, for example, fillings, bridges, and extractions, almost always involves physical impact of the teeth. The intended effect of dental treatment performed in service, including extractions of teeth, is not considered dental "trauma" as the term is defined in 38 U.S.C.A. § 1712 , 38 C.F.R. §§ 3.381 and 17.161 (and former § 17.123(c)). See also 38 U.S.C.A. § 7104(c) (2010); Nielson v. Shinseki, 607 F.3d 802, 804 (Fed. Cir. 2010) (holding "that "service trauma" under the statute is an injury or wound produced by an external physical force during the performance of military duties, and does not include the intended result of proper medical treatment"); Smith v. West , 11 Vet. App. 134 (1998). To have had dental extractions during service is not tantamount to dental trauma, because trauma of teeth, even extractions, in and of itself, does not constitute dental trauma. VAOPGCPREC 5-97, 62 Fed. Reg. 15,566 (1997). Therefore, as the Veteran does not allege any injury to his teeth outside of the normal course of inservice dental treatment, the Board finds the Veteran did not suffer dental "trauma." 38 C.F.R. §§ 3.381, 17.161. Post-service medical records indicate the Veteran has dental implants. No medical professional, however, has attributed his dental condition to any traumatic incident of the Veteran's military service. The evidence of record does not support a grant of entitlement to service connection for a dental disorder. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. at 54-56. B. Vision loss Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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). As an initial matter, for purposes of entitlement to receive compensation benefits, the law provides that refractive error of the eyes is a developmental defect and not a disease or injury within the meaning of applicable legislation. In the absence of superimposed disease or injury, service connection is not granted for refractive error of the eyes, including myopia, presbyopia and astigmatism, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. 38 C.F.R. §§ 3.303(c), 4.9; Veterans Benefits Administration (VBA) Manual M21-1MR, Part III, iv.4.B.10.d. The Veteran claim service connection for vision loss. He asserts that his eyesight got worse in service. The Veteran does not contend that he had any eye disease or injury during service. Post-service VA records reflect current treatment for visual impairment. The evidence does not show a diagnosis of an acquired eye disease process or any injury or trauma of the eyes which is related to service. However, as discussed, service connection may not be granted for refractive error. Moreover, the service treatment records and VA treatment records prepared after service do not show that the Veteran has an current acquired eye disability for VA compensation purposes. VAOPGCPREC 82-90 (July 18, 1990). Based upon the foregoing, the claim of service connection must be denied due to the lack of a present disability for VA purposes. In a case where the law and not the evidence is dispositive, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet.App. 426, 430 (1994). ORDER Service connection for a dental condition is denied. Service connection for vision loss is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs