Citation Nr: 1302791	
Decision Date: 01/25/13    Archive Date: 01/31/13

DOCKET NO.  09-35 324	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUE

Entitlement to service connection for a dental disorder, including as secondary to service-connected diabetes mellitus.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Joseph P. Gervasio, Counsel

INTRODUCTION

The Veteran served on active duty from April 1966 to March 1969.  

This case comes to the Board of Veterans' Appeals (Board) on appeal of a November 2008 rating decision of the Milwaukee, Wisconsin, Regional Office (RO) of the Department of Veterans Affairs (VA).  

In April 2012, a travel board hearing was held before the undersigned in Milwaukee, Wisconsin.  A transcript of the hearing is associated with the Veteran's claims file.

The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C.


REMAND

The Veteran is claiming service connection for periodontal disease, claimed as secondary to service-connected diabetes mellitus.  The appeal comes from a November 2008 rating decision of the RO, which is part of the Veteran's Benefits Administration (VBA).  During the pendency of this appeal, the regulations applicable to service connection for dental disabilities were revised.  Effective February 29, 2012, the regulations provide that the VBA will adjudicate a claim for service connection of a dental condition for treatment purposes after the Veterans Health Administration (VHA) has made a determination regarding basic eligibility under the requirements of 38 C.F.R. §  17.161.  38 C.F.R. § 3.381(a) (2012).  

To date, there has been no eligibility determination made by VHA regarding dental treatment.  Where the law or regulation changes after the claim has been filed, but before the administrative or judicial process has been concluded, the version most favorable to the Veteran applies.  Karnas v. Derwinski, 1 Vet. App. 308 (1991).  In order to afford the Veteran due process, the issue must be returned for proper consideration by VHA.  

Accordingly, the case is REMANDED for the following action:

1.  In accordance with the amended regulations of C.F.R. § 3.381, effective February 29, 2012, send the Veteran's claim of entitlement to service connection for a dental condition, to include periodontal disease as secondary to diabetes mellitus, to VHA to determine if the Veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161.  

2.  Then readjudicate the claim.  If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response.  Then, return the claim to the Board.

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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).


_________________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2012).