Citation Nr: 1304889 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 10-29 215 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Whether new and material evidence has been submitted to reopen a claim of service connection for a dental disability, with jaw injury and loss of teeth, for compensation purposes. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from December 1951 to December 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran's claim on appeal concerns compensation relating to a dental disability. Entitlement to dental treatment is a completely separate benefit. A September 2012 report of contact notes that the Veteran had withdrawn his prior request for a hearing before the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). FINDINGS OF FACT 1. A February 1956 rating decision found inservice dental trauma to teeth #3, 4, 5, 13, 14, 18, 19, 20, 21, and 30; and granted entitlement to dental treatment for these teeth. 2. In an unappealed rating decision issued in August 1997, the RO denied the Veteran's original claim seeking service connection for dental disability, with jaw injury and loss of teeth, for compensation purposes. 3. Evidence received since the August 1997 rating decision is cumulative or redundant of the evidence previously of record, or does not address an unestablished fact necessary to substantiate the claim and fails to raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW The criteria for reopening a previously denied claim of service connection for a dental disability, with jaw injury and loss of teeth, for compensation purposes are not met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Additionally, in March 2006, the Court held that because the terms "new" and "material" in a new and material evidence claim have specific, technical meanings that are not commonly known to VA claimants, when providing the notice required by the VCAA, it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of the evidence that must be presented. Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006). The record reflects that the Veteran was provided all required notice in a letter sent in June 2009, prior to the rating decision on appeal. The duty to assist the Veteran has also been satisfied in this case. The RO has obtained the Veteran's service treatment records and taken all reasonable actions to obtain other treatment records identified by the Veteran. Although the Veteran claimed to have received dental treatment from various private dentists, he reported on his substantive appeal form, filed in June 2010, that all of these private dentists were deceased and that their treatment records could not be obtained. The Veteran has also contends that he received dental treatment from the VA medical center in Hampton, Virginia. The evidence of record currently includes treatment records from this facility, dated from September 1996 to September 2003. While additional records could potentially exist, the current evidence of record from this facility confirms the Veteran's allegations that he now has a complete set of dentures. As discussed in more detail below, service connection for compensation purposes can not be established for replaceable missing teeth. 38 C.F.R. § 3.381. Accordingly, further delay of the appellate process to obtain additional treatment records from this facility would serve no useful purpose. Otherwise, neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the Veteran's claim to reopen. The Board is also unaware of any such evidence. The Board acknowledges that the veteran was not afforded a VA examination in response to this claim to reopen, but notes that VA has no obligation to provide such an examination if new and material evidence has not been presented. See 38 C.F.R. § 3.159 (c)(4). Legal Criteria Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Dental disabilities that may be awarded compensable disability ratings 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, loss of the maxilla, nonunion or malunion of the maxilla, limited temporomandibular motion, loss of the ramus, loss of the condyloid or coronoid processes, loss of the hard palate, and 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(b), treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are to be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment as provided in 38 C.F.R. § 17.161. The Board notes that 38 C.F.R. § 3.381 was recently amended; however, the amendments did not alter 3.381(b), and are not pertinent in this case. See 77 Fed. Reg. 4496 (January 30, 2012). Factual Background and Analysis The Veteran served on active duty in the Air Force from December 1951 to December 1955. His service treatment records indicated that he fractured several teeth in a fall while mopping a cement floor in November 1955. As a result of this injury, several of the Veteran's teeth were extracted. A February 1956 rating decision found inservice dental trauma to teeth #3, 4, 5, 13, 14, 18, 19, 20, 21, and 30; and granted entitlement to treatment for these teeth. On April 1997, the Veteran filed his original claim seeking service connection for a dental condition, with jaw injury and loss of teeth, for compensation purposes. Disability. In August 1997, the RO issued a rating decision which denied the Veteran's claim. Although notified of this decision that same month, the Veteran did not timely file an appeal. In October 2009, the Veteran filed to reopen his claim seeking service connection for a dental disability, with jaw injury and loss of teeth, for compensation purposes.. In support of his claim to reopen, the Veteran contends that he received dental treatment from the VA medical center in Hampton, Virginia. In statements received in July 2009 and February 2010, he reported that all of his teeth have been removed and that they have been replaced with a full set of dentures. VA treatment records, dated from September 1996 to September 2003, reveal a history of a dental treatment. A September 1995 VA treatment report notes that the Veteran needed his dentures repaired. A March 1996 VA treatment report notes that an impression for dentures was taken. An April 1996 VA treatment report notes that the Veteran's bite was evaluated after his having received a full set of dentures. A March 2003 treatment report notes that the Veteran was edentulous (toothless). The evidence added to the record is cumulative or redundant or does not address an unestablished fact, and fails to raise a reasonable possibility of substantiating the claim. At the time of the August 1997 rating decision, the Veteran's assertion that he sustained a dental injury during service was of record. The Veteran's continued descriptions of this injury are, therefore, cumulative and redundant and do not constitute new and material evidence. Moreover, he has not provided a basis on which the Board can consider there to be a reasonable possibility of a new theory triggering development which could result in substantiating his claim. As for the evidence indicating that the Veteran has had all of his teeth removed and replaced by a full set of dentures, replaceable missing teeth will be service connected solely for the purpose of determining entitlement to outpatient dental treatment. See 38 C.F.R. § 3.381. Thus, his claim seeking service connection for compensation based upon his teeth having been replaced by dentures must fail. Under these circumstances, the Board must conclude that new and material evidence to reopen the claim has not been received. ORDER The Board having determined that new and material evidence has not been received, reopening of the claim for service connection for a dental disability, with jaw injury and loss of teeth, for compensation purposes is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs