Citation Nr: 1302280 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 10-02 692 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen the claim for service connection for dental trauma with tooth loss, and if so, whether service connection is warranted. 2. Whether new and material evidence has been received to reopen the claim for service connection for a psychiatric disorder to include posttraumatic stress disorder (PTSD), and if so, whether service connection is warranted. 3. Entitlement to service connection for a neck disability. 4. Entitlement to a higher rating for low back strain, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from August 1982 to August 1986 and from November 1987 to April 1994. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in April 2009, a statement of the case was issued in November 2009, and a substantive appeal was received in January 2010. The Veteran provided testimony during a videoconference hearing before the undersigned Veterans Law Judge of the Board in September 2012. A transcript of the hearing is contained in the claims folder. At the hearing, the record was held open for an additional 30 days to permit the Veteran an opportunity to obtain and submit additional evidence. However, this period has expired without additional evidence being submitted. The Veteran has claimed service connection for PTSD. There is a diagnosis of depressive disorder in May 2012. PTSD has not been diagnosed. Although the Veteran's claim of service connection for a psychiatric disability has been described as one for PTSD, it appears that he may be seeking service connection for depressive disorder as well. Accordingly, the Board believes that the Veteran's psychiatric disability claim would be more accurately described as one for service connection for a psychiatric disorder to include PTSD. See generally Clemons v. Shinseki, 23 Vet. App. 1 (2009). The issue of service connection for a neck disability, the issue of service connection for a psychiatric disorder to include PTSD, on its merits, and the issue of a higher rating for residuals of low back strain 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. The RO denied service connection for a dental condition for dental treatment purposes in June 2005. The Veteran did not appeal, nor was new and material evidence received within one year of notification of the decision. 2. Since the final June 2005 RO decision denying service connection for a dental condition for dental treatment purposes, evidence relating to an unestablished fact necessary to substantiate the claim and which is neither cumulative nor redundant of the evidence of record at the time of the last prior denial of the claim has been received. 3. The Veteran does not have a dental disability for which compensation is payable; he does not meet the legal requirements for service connection for a dental disorder for the limited purpose of receiving VA outpatient treatment; he is not shown to have a dental disability that is a residual of a combat wound or other trauma in service. 4. The RO denied service connection for PTSD in June 2005. The Veteran did not appeal, nor was new and material evidence received within one year of notification of the decision. 5. Since the final June 2005 RO decision denying service connection for PTSD, evidence relating to an unestablished fact necessary to substantiate the claim and which is neither cumulative nor redundant of the evidence of record at the time of the last prior denial of the claim has been received. CONCLUSIONS OF LAW 1. The June 2005 RO decision denying service connection for a dental condition for dental treatment purposes is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 2. The criteria to reopen the claim for service connection for dental trauma with tooth loss based on new and material evidence are met. 38 U.S.C.A § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. Service connection for a dental disability, for compensation purposes and/or for VA outpatient dental treatment purposes, is not warranted. 38 U.S.C.A. §§ 1110, 1131, 1712 (West 2002); 38 C.F.R. §§ 3.381, 4.150, 17.161 (2012). 4. The June 2005 RO decision denying service connection for PTSD is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 5. The criteria to reopen the claim for service connection for a psychiatric disorder to include PTSD based on new and material evidence are met. 38 U.S.C.A § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Prior unappealed RO rating decisions, where no additional correspondence is received within one year following the notice, are final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. Claims are to be reopened when new and material evidence is submitted. 38 U.S.C.A. § 5108. Applicable 38 C.F.R. § 3.156 provides that new evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing 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. The credibility of evidence must be presumed for the purpose of determining whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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, 1131; 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). To prevail on the issue of service connection, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1( 1999); 38 C.F.R. § 3.303(a). Disability compensation and VA outpatient dental treatment may be provided for certain specified types of service-connected dental disorders. For other types of service-connected dental disorders, the claimant may receive treatment only and not compensation. 38 U.S.C.A. § 1712; 38 C.F.R. §§ 3.381, 4.150, 17.161. Dental disabilities that are compensable are set forth under 38 C.F.R. § 4.150. These disabilities include chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss of the mandible, nonunion or malunion of the mandible, limited temporomandibular motion, loss of the ramus, loss of the condyloid or coronoid processes, loss of the hard palate, loss of teeth due to the loss of substance of the body of the maxilla or mandible and where the lost masticatory surface cannot be restored by suitable prosthesis, when the bone loss is a result of trauma or disease but not the result of periodontal disease. 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. Under 38 C.F.R. § 3.381, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal diseases are to be considered service-connected only for the purpose of establishing eligibility for outpatient dental treatment as provided in 38 C.F.R. § 17.161. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Te Board has reviewed all of the evidence in the Veteran's claims file, and in Virtual VA (VA's electronic data storage system). Dental trauma with tooth loss Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). 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 notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the Veteran pre-adjudication notice by a letter dated in May 2008. The notification complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a claimant under the VCAA. VA has obtained service treatment records; assisted the Veteran in obtaining evidence; and afforded the Veteran the opportunity to give testimony before the Board. An examination is not necessary for the dental trauma with tooth loss claim as it has not been reopened. 38 C.F.R. § 3.159. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. The RO denied service connection for a dental condition for dental treatment purposes in June 2005. The Veteran was notified of the decision and of his appellate rights by a letter dated in June 2005. He did not appeal, and no correspondence was received from him within one year following the June 2005 notice to him. Moreover, no additional relevant evidence was received within one year of notice of the decision. Thus, the rating decision became final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. The basis of the decision was that that the evidence did not show that the Veteran had a dental condition resulting from another service-connected disability, a dental condition due to combat wounds or other service trauma, or based on prisoner of war (POW) status of less than 90 days. At the time of the June 2005 decision, there were service treatment records showing that actual teeth 8 and 9 were removed in service, without any antecedent in-service dental trauma, in 1983. In July 1988, the Veteran received blows during a fight, fracturing prosthetic teeth 8 and 9 from a temporary removable partial denture. A VA dental examination was conducted in November 2003. The Veteran had some teeth in his mouth at that time, as well as an upper partial denture. The evidence submitted since the last final decision denying service connection for dental condition for dental treatment purposes in June 2005 is sufficient to reopen the claim. There had been no evidence previously of dental trauma in service. The service treatment records had shown trauma to a prosthetic dental device for teeth 8 and 9. The Veteran's September 2012 testimony that he lost both of this front 2 teeth (8 and 9) in service in about 1988 or 1989 due to tooth trauma is new and material. Accordingly, the claim is reopened. On the merits, however, the claim for service connection for dental trauma with tooth loss must remain denied. The preponderance of the evidence indicates that the Veteran's actual teeth 8 and 9 had been removed prior to the July 1988 trauma in service, and that the trauma in July 1988 was trauma to artificial teeth from a dental prosthesis, not to any actual teeth/not dental trauma. His temporary prosthesis is what was traumatized in July 1988, according to service treatment records. It appears that this is what the Veteran would have testified if he had been attempting to be very precise in his testimony. The Board finds that the Veteran does not have a dental disability for which compensation is payable. Notably, he has not submitted any competent evidence showing that he suffers from any of the disabilities included under 38 C.F.R. § 4.150. Moreover, there is now no evidence of irreplaceable missing teeth. As late as the Veteran's September 2012 hearing, he testified that he is still wearing a partial denture. Replaceable missing teeth [due to trauma] may be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment. See 38 C.F.R. § 3.381. Based upon the foregoing, the Board concludes that there is no basis in the law for the award of VA compensation for the Veteran's current dental condition. He is not eligible for VA compensation as his current dental condition does not fall under the categories of compensable dental conditions set forth in 38 C.F.R. § 4.150 (outlined above). The Court has held that a dental claim seeking service connection for a dental disability for compensation purposes is also a claim of service connection for outpatient dental treatment purposes. Mays v. Brown, 5 Vet. App. 302 (1993). The Board finds that there is no basis for the grant of service connection for a dental condition for VA outpatient dental treatment purposes only. Governing regulations provide classes of eligibility for VA outpatient dental treatment, defining the circumstances under which treatment may be authorized. 38 C.F.R. § 17.161. The Veteran does not meet the requirements for eligibility for outpatient treatment based on any of the classes. One-time dental treatment (Class II) is available, but 38 C.F.R. § 3.183 limits the outpatient dental treatment to treatable or replaceable missing teeth in some instances. See 38 C.F.R. § 17.161(b). Here, the Veteran was separated from service in April 1994; he is eligible for treatment only with a timely filed application (submitted within one year after separation). There is no indication he filed a timely application; accordingly, he does not meet the requirements for VA dental care on a Class II basis. Veterans having a noncompensable service-connected dental condition that is the result of combat wounds or other service trauma are eligible for VA dental care on a Class II(a) basis. 38 U.S.C.A. § 1712(a)(1)(c); 38 C.F.R. § 17.161(c). The significance of a finding that a dental condition is due to trauma in service 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). The Veteran does not contend, and the evidence does not show, that he ever served in combat. The regulations providing for treatment for disability due to dental trauma are intended to cover dental trauma involving external, sudden-force injury, such as a wound to the teeth and jaw. Accordingly, "service trauma" would not include tooth extractions in service not due to trauma. For the purposes of determining treatment eligibility, the term "service trauma" does not include the intended effects of treatment provided during the Veteran's military service. VAOPGCPREC 5-97 (1997); 62 Fed. Reg. 15,566 (1997); see also Nielson v. Shinseki, 23 Vet. App. 56 (2009). The preponderance of the evidence indicates that there was no dental trauma in service. Accordingly, service connection for a dental disability for treatment purposes on the basis that such is due to dental trauma must be denied. The preponderance of evidence is against this claim, and the appeal in this matter must be denied. Psychiatric disorder The RO denied service connection for PTSD in June 2005. The Veteran was notified of the decision and of his appellate rights by a letter dated in June 2005. He did not appeal, and no correspondence was received from him within one year following the June 2005 notice to him. Moreover, no additional relevant evidence was received within one year of notice of the decision. Thus, the rating decision became final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. The basis of the decision was that that the Veteran did not have DSM-IV diagnosis of PTSD or evidence of an in-service stressor. There also was no diagnosis of any other psychiatric disorder at the time. At the time of the June 2005 decision, service treatment records showed that in April 1984, the Veteran reported that he had been getting drunk every night in the last week except for the night before. A service dental record shows that in July 1988, the Veteran was in a fight which broke a temporary removable partial denture. Post-service, he was treated for anxiety in July and August 2002 and for anxiety/depression in August 2004, when he reported feeling stressed out. Evidence received since the June 2005 decision includes a report of a VA evaluation in August 2004, wherein the Veteran reported depression, insomnia, and nightmares about his ship while he was in service during the Gulf War. PTSD was to be ruled out. Later that month, the Veteran reported that he had been drinking too much, and the diagnosis was alcohol dependence, rule out substance induced mood disorder. A screen for PTSD was positive in January 2005. A VA examiner in May 2012 found that stressors considered at that time were not sufficient to support a diagnosis of PTSD, and that the Veteran's symptoms did not meet DSM-IV criteria for PTSD. However, the examiner diagnosed depressive disorder. There had not previously been a current diagnosis of an acquired psychiatric disorder post-service. Instead, symptoms (anxiety and depression) had been reported. There is currently a diagnosis of depressive disorder. This evidence is new and material, since it constitutes previously absent necessary evidence, and so the claim is reopened. Further action on remand is required regarding this claim. ORDER Service connection for dental trauma with tooth loss is denied. The application to reopen the claim for service connection for a psychiatric disorder to include PTSD is granted. To this extent only, the appeal is allowed. REMAND Under 38 C.F.R. § 3.159, a VA psychiatric examination must be conducted for the psychiatric disorder claim, as there is medical evidence of current psychiatric disability (depressive disorder), there were potentially relevant events in service (excessive drinking and a fight), and there is an indication, through post-service treatment, that the current psychiatric disability may be related to events in service. The low threshold of McLendon v. Nicholson, 20 Vet. App. 79 (2006), for requiring a VA examination are met. Beforehand, as a July 1988 service dental record shows that the Veteran was in a fight in service (a type of personal assault), and since the Veteran is claiming service connection for PTSD, he should be advised, as required by 38 C.F.R. § 3.304(f)(5) (2012), that evidence from sources other than his service records or evidence of behavior changes may constitute credible supporting evidence of a stressor, and allow him the opportunity to furnish this type of evidence or to advise VA of potential sources of such evidence. Next, the RO has provided the Veteran direct service connection VCAA notice and adjudicated the claim for service connection for a neck disability on a direct basis. However, during the Veteran's September 2012 hearing, he indicated that neck problems were generated through his lower back strain, which is service-connected. In essence, he has raised the matter of secondary service connection for neck disability as secondary to his service-connected residuals of low back strain. Service connection may be granted, on a secondary basis, for a disability which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2012). Similarly, any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. The Veteran should be given VCAA notice concerning this secondary service connection claim. Furthermore, a VA examination is necessary on the matter of service connection for neck disability under 38 C.F.R. § 3.159, as the Veteran has a service-connected low back strain, a May 2009 VA medical record shows treatment for neck complaints, and the Veteran testified in September 2012 as to persistent or recurrent symptoms of a neck disability. Under the low threshold of McLendon v Nicholson, 20 Vet. App. 79 (2006), the Board finds that this is sufficient to warrant a VA examination. Next, during the Veteran's September 2012 hearing, he testified that his low back strain has become worse since his last "rating", and that it continues to strain even more. Although a new examination is not required simply because of the time which has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is an assertion of an increase in severity since the last examination, which in this case was in June 2010. VAOPGCPREC 11-95 (1995). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with VCAA secondary service connection notice concerning his claim for service connection for neck disability as secondary to his service-connected low back strain. Also, regarding his PTSD claim, advise the Veteran that evidence from sources other than his service records or evidence of behavior changes may constitute credible supporting evidence of a PTSD stressor, and allow him the opportunity to submit this type of evidence or to advise VA of potential sources of such evidence. 2. Thereafter, the Veteran should be scheduled for an appropriate VA examination with regard to his claimed neck disability. It is imperative that the claims file be made available to the examiner for review in connection with the examination. After reviewing the claims file and examining the Veteran, the examiner should respond to the following: a) Does the Veteran have a current neck disability, and if so, what is the most appropriate diagnosis? b) If the Veteran does have a current neck disability, is it at least as likely as not (a 50% or higher degree of probability) that such current neck disability is causally related to any injury or incident of service? c) Is it at least as likely as not (a 50% or higher degree of probability) that a current neck disability is proximately due to or caused by the service-connected low back strain? d) Is it at least as likely as not (a 50% or higher degree of probability) that a current neck disability has been aggravated by the service-connected low back strain? The examiner should furnish reasons for the opinions. 3. The Veteran should be scheduled for a VA psychiatric examination, by a psychiatrist if possible. The claims file must be made available to the examiner for review prior to the examination. The examiner should offer an opinion as to whether it is at least as likely as not (a 50% or higher degree of probability) that the Veteran's currently diagnosed depressive disorder is causally related to service, to include the events and/or any symptomatology surrounding the excessive drinking in April 1984 (as shown by a service treatment record) or the fight in July 1988 (as shown by a service dental record). A rationale should be provided, to include discussion of the service and post-service treatment records, the latter of which start in July 2002. If the Veteran fails to report for the examination, the examiner should nevertheless undertake a review of the claims file and respond to the above-posed questions. 4. Thereafter, the Veteran should be scheduled for a VA examination for his low back strain disability. It is imperative that the claims file be made available to the examiner for review in connection with the examination. All necessary special studies or tests are to be accomplished. The examiner should clearly report all examination findings in accordance with VA rating criteria for low back strain which are applicable to this appeal. 5. Then, the RO should review the expanded record and undertake a merits analysis of the neck disability claim, including on a secondary service connection basis. The claims for service connection for a psychiatric disorder and a higher rating for low back strain should also be considered de novo. As to any claim that remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. 2012). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs