Citation Nr: 1303343 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 09-27 720A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for loss of teeth, to include as due to radiation treatment for service-connected non-Hodgkin's lymphoma. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Veteran and BM. ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from March 1959 to January 1961 and from June 1966 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office in Chicago, Illinois (RO) and Board remand. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The competent evidence of record does not demonstrate that Veteran's loss of teeth is related to his military service or to a service-connected disorder, to include as due to radiation treatment for service-connected non-Hodgkin's lymphoma. CONCLUSION OF LAW Loss of teeth was not incurred in or aggravated by active military service, and is not proximately due to or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim for entitlement to service connection for loss of teeth, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Prior to an October 2012 readjudication of the Veteran's claim, letters dated in December 2005, July 2008, and March 2012 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, to include the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007); Sanders v. Nicholson, 487 F.3d. 881, 887 (Fed. Circ. 2007), rev'd on other grounds, Sanders v. Shinseki, 556 U.S. - (2009). The Veteran's service treatment records and VA treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Although the RO requested that the Veteran identify any VA or non-VA providers for dental treatment, either before or after his radiation treatment in 1997, the Veteran has not identified any medical treatment records relating to his loss of teeth. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that the duty to assist is not always a one-way street, and that the Veteran cannot passively wait for help where he may or should have information that is essential in obtaining evidence). In addition, the RO obtained two VA opinions with regard to the etiology of the Veteran's loss of teeth. Despite careful review of the evidence of record as well as physical examination and interview of the Veteran, neither examiner was able to provide an opinion as to whether the Veteran's loss of teeth was due to his radiation treatment for non-Hodgkin's lymphoma in the absence of dental records prior to and after the radiation treatment. The Veteran has not indicated that he found either VA examination to be inadequate and has not provided the medical information necessary for either VA examiner to provide the opinion sought. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). There is no indication in the record that any other additional evidence relevant to the issue decided herein is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran contends that service connection for loss of teeth is warranted, and alleges that he lost his teeth as a result of the radiation treatment that he received for his service-connected non-Hodgkin's lymphoma. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In addition, 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). Pursuant to 38 C.F.R. § 3.303(b), VA may award service connection where a claimant can demonstrate "(1) that a condition was 'noted' during service; (2) evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology." Barr, 21 Vet. App. at 307. A claimant may rely on lay evidence "to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492, F.3d 1372, 1377 (Fed. Cir. 2007) (footnote omitted). "[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Additionally, service connection may be granted where a disability is determined to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Veteran's service treatment records are negative for any complaints, treatment, or diagnoses of loss of teeth. Dental records from 1960 show preventative treatment and extractions of two wisdom teeth on the top. A June 1966 dental examination showed that one of the Veteran's wisdom teeth on the bottom had been removed. The Veteran regularly denied severe tooth or gum trouble. Private medical records reveal that the Veteran underwent radiation treatment for non-Hodgkin's lymphoma from September 1997 through October 1997. He received local radiation therapy in 18 treatments over a 31 day period. A dose of 3600 centigray was given to the right orbit and sinuses using a single anterior field. The treatment field measured 9.5 centimeters (cm.) by 10 cm., though was reduced in size by added blocking. Bolus material and facial mask were utilized to intensify the dose to the skin, and the Veteran was treated with a 4 MV photon beam of the Clinac 4 linear accelerator. During the course of treatment, the Veteran improved with less swelling. He developed gradually increasing erythema in the treatment area and then had marked periorbital swelling and mild erythema as well as conjunctivitis. From December 1997 through June 1998, the Veteran received eight cycles of chemotherapy with Fludarabine, given intravenously for five days at a time. In June 2003, the Veteran underwent transurethral resection of the prostate (TURP) for symptoms of prostatic hyperplasia and chronic urinary symptoms related to that. The tissue revealed cancer in the prostate chips. In November 2003, 92 Palladium 103 seeds were implanted with an activity of 1.53 to treat the Veteran's prostate cancer. In July 2007, the Veteran underwent a VA dental examination. Examination showed that he was missing teeth numbered 1 through 32 and wore complete upper and lower dentures. Clinical examination showed edentulous ridges of moderate height and width. There was no limitation of interocclusal range and there was bone loss of the mandible and maxilla consistent with the edentulous mouth. Panorex radiograph demonstrated moderate bone loss and clinical evaluation of the hard and soft tissues of the oral cavity appeared within normal limits and consistent with the edentulous mouth. After reviewing the Veteran's entire claims file, the examiner stated that he was unable to determine whether the radiation treatment caused or aggravated the Veteran's loss of teeth, as there were no dental records or radiographs of record prior to the initiation of radiation therapy and no records indicating which teeth were extracted after radiation therapy ended. The examiner noted that the amount of radiation delivered for the treatment would be considered a low dose. Accordingly, the examiner concluded that there was insufficient evidence to make a correlation between radiation therapy and loss of teeth. During an April 2008 hearing before the RO, the Veteran testified that he began losing his teeth a year or two after the radiation treatment for his non-Hodgkin's lymphoma ended. He reported that he was issued dentures by VA and that he had difficulty eating and jaw pain. In April 2012, the Veteran underwent another VA dental examination. The Veteran reported that he completed radiation therapy for non-Hodgkin's lymphoma of the right orbit and paranasal sinus in 1997 and had all of his teeth taken out shortly thereafter. He then had a full set of dentures made, but did not wear them. He had another set made in 2007 at a VA dental clinic, but does not wear those. Physical examination revealed mandibular and maxillary bone loss consistent with complete edentulism. There was a loss of all upper and lower teeth. Examination revealed complete edentulism with sufficient maxillary and mandibular alveolar bone remaining to support a full set of dentures. There was also a sufficient amount of salivary flow, suggesting that no major salivary glands were affected by radiation treatment. The diagnosis was loss of teeth. However, after reviewing the Veteran's claims file, the examiner concluded that there was still insufficient information to determine whether it is more likely than not that the Veteran's loss of teeth was secondary to radiation therapy for non-Hodgkin's lymphoma of the right orbit and paranasal sinus, as there was no evidence of the Veteran's dental records after service discharge and prior to and after radiation therapy. After thorough review of the evidence of record, the Board concludes that the medical evidence of record does not show that entitlement to service connection for loss of teeth, to include as secondary to radiation therapy for non-Hodgkin's lymphoma, is warranted. There is a current diagnosis of loss of teeth. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). In addition, although the service treatment records suggest that three teeth were extracted during service, they do not show a loss of all teeth. The first medical diagnosis of record of loss of teeth was in a July 2007 VA examination, over 38 years after service discharge. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). Further, the medical evidence of record does not reflect a medical opinion that the Veteran's loss of teeth was caused or aggravated by service or radiation therapy as a result of service-connected non-Hodgkin's lymphoma. In that regard, neither the July 2007 nor the April 2012 VA examiner was able to provide an opinion as to whether it was more likely than not that the loss of teeth was due to radiation therapy because there is no evidence addressing the state of the Veteran's dental health since service discharge. The Board acknowledges the Veteran's argument that his loss of teeth is related to the radiation therapy from his non-Hodgkin's lymphoma. The Veteran's statements are competent evidence as to what he observed. See Buchanan, 451 F.3d at 1337. In that regard, they are competent evidence that he bagan to lose his teeth approximately one year after his radiation therapy ended. However, the Veteran is not competent to establish the medical etiology of his loss of teeth. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); see also Barr, 21 Vet. App. at 307 (noting that lay testimony is competent to establish observable symptomatology but not competent to establish medical etiology or render medical opinions). Specifically, the Veteran does not have the required specialized medical training and expertise to provide a competent opinion that his loss of teeth is related to service or to a service-connected disability. Additionally, the Veteran has not identified any provider of dental treatment after service, or shortly after the 1997 radiation treatment, whose records might assist in substantiating his claim. Accordingly, as there is no probative evidence of record linking the Veteran's loss of teeth to service or to his service-connected non-Hodgkin's lymphoma, service connection is not warranted. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (noting that the question of whether a diagnosed disability is etiologically related to active service requires competent medical evidence). Also, there is no medical or competent lay evidence suggesting that the Veteran's loss of teeth is directly related to his active duty service. In this, and in other cases, only independent medical evidence may be considered to support Board findings. The Board may not base a decision on its own unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for loss of teeth is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs