Citation Nr: 1303653	
Decision Date: 02/01/13    Archive Date: 02/08/13

DOCKET NO.  02-10 857A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to service connection for a dental disorder for purposes of establishing eligibility for VA outpatient treatment.  


REPRESENTATION

Appellant represented by:	Missouri Veterans Commission


ATTORNEY FOR THE BOARD

Brian J. Milmoe, Counsel


INTRODUCTION

The Veteran served on active duty from June 1972 to October 1974. 



This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in August 2001 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, denying the Veteran's claim for service connection for a dental disorder.  Following entry of its remand in August 2007, the Board by its January 2010 decision denied entitlement to VA compensation for a dental disorder, while remanding the issue of entitlement to service connection for a dental disorder for outpatient treatment purposes for additional development.  Further remands of the same issue were required in December 2011 and, and most recently, in March 2012, so that additional actions could be undertaken by the VA's Appeals Management Center (AMC) in Washington, DC.  Following the AMC's completion of the most recent development sought, the case has since been returned to the Board for further review. 


FINDING OF FACT

There is no showing that the Veteran is basically eligible for VA dental treatment on the basis of the existence of a service-connected dental disorder or other facts and circumstances bestowing such eligibility. 


CONCLUSION OF LAW

Service connection for a dental disorder, including dental trauma or residuals thereof, for the purpose of rendering the Veteran eligible for VA outpatient dental treatment is not warranted.  38 U.S.C.A. § 1712 (West 2002); 38 C.F.R. §§ 3.381, 17.161 (2012). 



REASONS AND BASES FOR FINDING AND CONCLUSION

Remand Compliance

This matter was previously remanded by the Board on multiple prior occasions in order to facilitate the conduct of additional evidentiary and/or procedural development.  All of the actions previously sought by the Board through its prior development requests now appear to have been completed as directed, and it is of note that neither the Veteran, nor his representative, contends otherwise.  See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). 

Duties to Notify and Assist

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The notification obligation in this case was accomplished by way of various written items of correspondence from the RO and AMC to the Veteran, which were mailed to the Veteran as to his claim for service connection for a dental disorder subsequent to entry of his June 2000 claim.  Such notice is to be furnished to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Here, full notice was provided to the Veteran only after the initial adjudication of the claim at issue, in contravention of Pelegrini.  However, any error as to the timing of the notice provided was cured by the readjudication of the claim once complete notice was in fact furnished.  See Prickett v. Nicholson, 20 Vet. App. 370, 376-78 (2006) (validating the remedial measures of issuing fully compliant VCAA notification and readjudicating the claim in the form of a supplemental statement of the case to cure timing of a notification defect).  In light of the foregoing, and in the absence of any allegation of prejudice by or on behalf of the Veteran, the Board cannot conclude that any defect in the timing or substance of the notice provided affected the essential fairness of the adjudication, with resulting prejudice to the Veteran. 

VA has also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case.  The record includes service treatment reports, as well as reports of postservice treatment and records utilized by the Social Security Administration in connection with the Veteran's claim for disability benefits from that agency.  Notice is taken that the Board by its most recent remand in March 2012 directed the AMC to locate and obtain a VA Form 21-0820, Report of General Information, dated December 21, 2011, followed by readjudication, and that if the foregoing document could not be located, clarifying information was to be obtained from the Veteran.  On remand, the AMC noted in an undated, handwritten annotation to the Board's remand that no VA Form 21-0820 was found and that it was "documented on 4138 by mistake."  By its March 2012 correspondence, the AMC attempted to contact the Veteran at his address of record to request that he provide certain dental records relating to treatment received from a private dentist in Mayfield, Kentucky, or to furnish identifying information so that VA could assist him in obtaining the referenced records.  No response was received by VA from or on behalf of the Veteran.  He has not otherwise made the RO, AMC, or the Board aware of any additional evidence that needs to be obtained in order to decide fairly the claim herein addressed, and has not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of his appeal.  See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006).  

The record indicates that the Veteran was afforded a VA examination in connection with his dental claim in March 2001, findings from which are detailed and comprehensive in scope and permit fair and equitable consideration of the merits the issue presented.  No objection as to the conduct of that examination or request for another examination is voiced by the Veteran or his representative.  On that basis, further development action relative to the disability at issue is not required.  See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  

In sum, the Board finds that VA has satisfied its duties to notify and assist under the governing law and regulations. 

Analysis of the Merits

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.  See 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 17.161.  

Legal authority provides for various categories of eligibility for VA outpatient dental treatment, such as veterans having a compensable service-connected dental condition (Class I eligibility); veterans having a noncompensable service-connected dental condition, provided that they apply for treatment within a year after service (Class II eligibility); and those having a noncompensable service-connected dental condition adjudicated as resulting from a combat wound or other service trauma (Class II(a) eligibility).  Other categories include treatment for veterans having a dental condition determined to be aggravating disability from an associated service-connected disability (Class III eligibility); veterans whose service-connected disabilities are evaluated as 100 percent, or who receive a total rating for individual unemployability (Class IV eligibility); and certain treatment for those who are enrolled in a rehabilitation program under chapter 31 (Class V eligibility).  Finally, any veteran scheduled for admission or otherwise receiving care and services under chapter 17 of 38 U.S.C. may receive outpatient dental care that is medically necessary, i.e., is for dental condition clinically determined to be complicating a medical condition currently under treatment (Class VI eligibility).  38 U.S.C.A. § 1712; 38 C.F.R. § 17.161.  

VA's General Counsel  has held that dental treatment of teeth, even extractions, during service does not constitute dental trauma.  See VAOPGCPREC 5-97, 62 Fed. Reg. 15,566 (1997). 

By its January 2010 decision, the Board denied service connection for a dental disorder as to other than for outpatient treatment purposes.  That decision is final in the absence of any indicated appeal to the U.S. Court of Veterans Appeals.  A claim for service connection for a dental disorder is also a claim for VA outpatient dental treatment.  Mays v. Brown, 5 Vet. App. 302 (1993).  

In connection with his June 2000 claim, the Veteran indicated that, following his discharge from service, VA authorized him to receive private dental treatment at VA expense.  

Service treatment records reveal that in June 1972, the Veteran had three missing teeth, numbers 1, 16, and 17.  Teeth numbers 2, 15, and 18 were carious and nonrestorable.  In June and December 1972, extractions of teeth numbers 2 and 18 were undertaken.  In October 1973, the Veteran reported to the dispensary with a complaint of a toothache.  His left lower wisdom tooth appeared to be "absescent," and the gum and left side of jaw were swollen.  An ice pack to left jaw and Darvon were prescribed. 

The Veteran underwent a VA dental and oral examination in March 2001, at which he reported that his teeth were extracted during military service.  He further noted that implants were placed by a Navy dentist and that those implants later failed and were removed.  Physical examination showed that the Veteran was edentulous with replacements.  The examiner noted that there was no loss of motion, that masticatory function was nominal for a denture wearer, and that the alveolar ridges were adequate for conventional full dentures.  The examiner found that other than the Veteran's statement, there was no evidence of loss of teeth or bone related to military service. 

In an August 2002 statement, the Veteran reported that ,in June 1972, he along with a number of other recruits were marched to the Dental Dispensary and told they had a new dentist that needed practice pulling teeth.  Over a period of a week, without explanation, he had 16 teeth pulled.  The Veteran also reported that he still had occasional bone spurs coming out of his gums. 

To have had dental extractions during service is not tantamount to dental trauma, because trauma to teeth, even extractions, in and of itself, does not constitute dental trauma.  VAOPGCPREC 5-97, 62 Fed. Reg. 15,566 (1997).  

In this instance, there is no service-connected dental disability, compensable or otherwise.  The Veteran was never a prisoner of war and there is otherwise no showing of aggravation of a service-connected disability by a nonservice-connected entity, total disablement either schedularly or by way of unemployability, or Chapter 31 enrollment.  Medical necessity for purposes of bestowing Class VI eligibility is also not demonstrated.  One or more nonservice-connected dental disorders are indicated, which according to the Veteran were treated after service by a private dentist, which VA authorized to be done at VA expense.  The Veteran's account regarding his receipt of VA dental treatment shortly after service is credible and otherwise uncontradicted by the record, and is thus found to be probative.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The extent of the private dental treatment received is unknown, despite VA's attempts to obtain the records from the private dentist, but 38 C.F.R. § 3.381(b) limits entitlement to a one-time treatment of a nonservice-connected dental disorder by VA after service and that treatment is shown to have been already received.  Therefore, service connection for a dental disorder for purposes of establishing eligibility for VA dental treatment must be denied. 

In conclusion, the evidence of record does not support a grant of entitlement to service connection for a dental disability for the purpose of obtaining VA dental treatment.  As a 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. 49, 54-56 (1990), and the claim advanced must be denied. 



ORDER

Service connection for a dental disorder for purposes of obtaining VA dental treatment is denied. 



_________________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals