Citation Nr: 1304745	
Decision Date: 02/08/13    Archive Date: 02/19/13

DOCKET NO.  09-48 540	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manchester, New Hampshire


THE ISSUE

Entitlement to service connection for teeth numbers 8 and 9 for VA dental treatment purposes.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Michael Wilson, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1957 to February 1963.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire, which, in relevant part denied the benefit sought on appeal.

The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing held in February 2011.  A transcript of the hearing is of record.  

In a March 2011 decision, the Board denied the Veteran's claim of entitlement to service connection for teeth numbers 8 and 9 for compensation purposes and also denied his claim of entitlement to service connection for teeth numbers 8 and 9 for VA dental treatment purposes.  The Veteran subsequently appealed that decision to the United States Court of Appeals for Veterans Claims (Court).  In an August 2012 decision, the Court vacated and remanded that part of the Board's decision that denied service connection for teeth numbers 8 and 9 for treatment purposes for compliance with the terms of the decision.  Specifically, the Court held that the Board failed to explain how a preponderance of the evidence demonstrated that the Veteran was intoxicated when the injury in question, resulting in the loss of teeth numbers 8 and 9, occurred.  The Court affirmed the Board's denial of the Veteran's claim of entitlement to service connection for teeth numbers 8 and 9 for compensation purposes, thus that issue is not before the Board.  

The issue of entitlement to service connection for teeth other than numbers 8 and 9 was previously referred to the Agency of Original Jurisdiction (AOJ) in the Board's March 2011 decision.  It appears, however, that this issue still has not been adjudicated.  Therefore, it is again referred to the AOJ for appropriate action.  


FINDING OF FACT

Teeth numbers 8 and 9 were found to be normal on the Veteran's enlistment into active service and were subsequently extracted after more than 180 days of service as a direct result of dental trauma, thus establishing Class II(a) eligibility for dental treatment for a service-connected noncompensable dental condition.  


CONCLUSION OF LAW

The criteria for service connection for teeth 8 and 9 for VA dental treatment purposes under Class II(a) have been met.  38 U.S.C.A. §§ 1131, 1712 (West 2002); 38 C.F.R. §§ 3.1, 3.301, 3.381, 4.150, 17.161 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

In this decision, the Board grants entitlement to service connection for teeth numbers 8 and 9 for VA dental treatment purposes only.  As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist pursuant to the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002), is necessary.

The issue on appeal before the Board is entitlement to service connection for teeth 8 and 9 for VA dental treatment purposes only.  

For the purpose of determining whether VA outpatient dental treatment may be authorized, various categories of eligibility exist as enumerated under 38 C.F.R. § 17.161.  These consist of veterans having a compensable service-connected dental condition (Class I eligibility); those eligible for one-time treatment for having a noncompensable service-connected dental condition (Class II eligibility); those having a noncompensable service-connected dental condition adjudicated as resulting from a combat wound or other service trauma (Class II(a) eligibility); those who were detained as a POW (Class II(b) and Class II(c) eligibility); those who made prior applications for, and received, dental treatment from VA for noncompensable dental conditions but were denied replacement of missing teeth that were lost during any period of service prior to his or her last period of service (Class IIR (Retroactive) eligibility); those having a dental condition professionally determined to be aggravating disability from an associated service-connected condition or disability (Class III eligibility); those whose service-connected disabilities are rated at 100 percent by schedular evaluation or who are entitled to the 100 percent rating by reason of individual unemployability (Class IV eligibility); those who participate in a rehabilitation program under 38 U.S.C. Chapter 31 (Class V eligibility) and those who are scheduled for admission or who are otherwise receiving care and services under Chapter 17 of 38 U.S.C., where dental care is medically necessary (Class VI eligibility). 38 U.S.C.A. § 1712 (West 2002); 38 C.F.R. § 17.161 (2012).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the 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.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as a fall leading to a broken leg.  Jandreau, 492 F.3d 1372, 1376-77.

The Board's duty is to assess the credibility and weight of the evidence.  See Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).

In the present case, the Veteran has credibly testified and submitted that two of his teeth were broken when he was hit by a fellow service member with a pipe during his service.  He sought immediate treatment for his injury, during which a dentist extracted teeth numbers 8 and 9.  The service treatment records (STRs) contain a dental chart listing "#8 Broken in fight // #9 Broken in another fight."  Both teeth were extracted in October 1962.  His STRs also reveal that he was not missing or otherwise found to have a dental condition (i.e. caries) of teeth numbers 8 and 9 at the time of his October 1957 service entrance examination.  Thus, the evidence of record clearly, including the Veteran's credible testimony, shows that teeth numbers 8 and 9 were broken as a result of trauma during a fight and were subsequently extracted during his active service.

Although the Veteran was previously found to not be entitled to service connection under the provisions of 38 C.F.R. § 4.150, in the Board's prior March 2011 decision, the Board must also consider whether a finding of service connection for a dental condition for treatment purposes is warranted under the provisions of 38 C.F.R. § 3.381, which specifically establishes the criteria for service connection of dental conditions for treatment purposes.  

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 under Class II or Class II (a) as provided in 38 C.F.R. § 17.161.  38 C.F.R. § 3.381 (b) (2012).  The rating activity will consider each defective or missing tooth and each disease of the teeth and periodontal tissues separately to determine whether the condition was incurred or aggravated in line of duty during active service.  38 C.F.R. § 3.381 (c) (2012).  In determining service connection, the condition of the teeth and periodontal tissues at the time of entry into active duty will be considered.  38 C.F.R. § 3.381 (d) (2012).  Teeth noted as normal at entry will be service-connected if they were filled or extracted after 180 days or more of active service.  38 C.F.R. § 3.381 (e)(1) (2012).  

The Board notes that effective February 29, 2012, during the pendency of the Veteran's appeal, VA amended its adjudication regulations regarding service connection of dental conditions for treatment purposes under 38 C.F.R. § 3.381.  See Fed. Reg. 4469 (Jan. 30, 2012).  These amendments merely clarify existing regulatory provisions and reflect the respective responsibilities of the Veterans Health Administration (VHA) and the Veterans Benefits Administration in making determinations that concern eligibility for dental treatment, and therefore, are deemed to be non-essential and to have no effect on determining eligibility for service connection for treatment purposes.  

Applying these criteria to the instant case, the Board finds that teeth numbers 8 and 9 were noted to be normal during the Veteran's October 1957 enlistment examination.  These teeth were subsequently extracted in October 1962, more than 180 days after his enlistment.  Thus, the provisions of 38 C.F.R. § 3.381 are satisfied, and teeth numbers 8 and 9 are deemed to be service-connected for treatment purposes only.  As such, the Veteran is deemed to have a service-connected dental disability within the meaning of 38 C.F.R. § 17.161.

Considering then whether outpatient dental treatment may be authorized pursuant to the provisions of 38 C.F.R. § 17.161, the Board finds that the evidence of record substantiates the Veteran's contention that his now service-connected, noncompensable dental condition was the direct result of dental trauma incurred during a fight with another service member.  Accordingly, the provisions of 38 C.F.R. § 17.161(d) pertaining to Class II(a) eligibility are also satisfied.  Therefore, service connection for teeth numbers 8 and 9 is warranted for VA treatment purposes only.  

Finally, it is recognized that the Board previously held in its March 2011 decision that the dental trauma in question was proximately and immediately due to the willful misconduct of the Veteran, as resulting from his intoxication due to alcohol use.  However, this finding was subsequently vacated by the Court because the Board failed to explain how a preponderance of the evidence demonstrated that the Veteran was intoxicated, and if so, that such intoxication was the proximate cause of the appellant's injury.  Upon review of the evidence of record, the Board indeed finds that there is insufficient evidence to support a finding that a preponderance of the evidence showed that the Veteran was intoxicated and that this willful misconduct was the proximate cause of his dental trauma.  See generally, Washington v. Nicholson, 19 Vet. App. 362 (2005); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Moore v. Derwinski, 1 Vet. App. 401 (1991).  Thus, the Board concludes that the Veteran's dental trauma was incurred in the line of duty.  38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.301 (2012).

In sum, the Veteran is shown to have suffered dental trauma in service leading to the subsequent extraction of teeth numbers 8 and 9 in accordance with the provisions of 38 C.F.R. § 3.381 and 17.161.  Accordingly, all doubt with respect to this claim is resolved in the Veteran's favor and his claim for service connection for teeth numbers 8 and 9 for VA dental treatment purposes only is granted.


ORDER

Entitlement to service connection for teeth numbers 8 and 9 for VA dental treatment purposes is granted.



____________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs