Citation Nr: 1305488	
Decision Date: 02/14/13    Archive Date: 02/21/13

DOCKET NO.  09-11 458	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for tooth number 8 for compensation purposes.

2.  Entitlement to service connection for tooth number 8 for outpatient dental treatment purposes.

3.  Entitlement to service connection for dental disabilities other than tooth number 8 for compensation purposes.

4.  Entitlement to service connection for a dental condition other than tooth number 8 for outpatient dental treatment purposes.


REPRESENTATION

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




ATTORNEY FOR THE BOARD

N. L. Rippel, Counsel


INTRODUCTION

The Veteran had active service from October 1961 to January 1965. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision of the Montgomery, Alabama, regional office (RO) dated in October 2007. 

This appeal was most recently before the Board in June 2012; at which time it was remanded for necessary development.  It has been returned to the Board for further appellate consideration.  The Board notes that a claim for service connection for a dental disorder is also considered a claim for VA outpatient dental treatment.  See Mays v. Brown, 5 Vet. App. 302 (1993).  Given that, and because the originating agency has actually considered claims for service connection and for outpatient treatment, the Board has now characterized the Veteran's claim for service connection for a dental disability as the multiple claims reflected on the title page. 

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).


FINDINGS OF FACT

1.  Tooth number (#) 8 is not missing; it was fractured during service due to trauma.  

2.  There was no trauma to any other tooth or the mandible or maxilla during service.

3.  The Veteran has not suffered any tooth loss due to loss of substance of the body of maxilla or mandible caused by trauma or disease.


CONCLUSIONS OF LAW

1.  The claim for service connection for tooth #8 for compensation purposes, is without legal merit.  38 U.S.C.A. §§ 1110, 1712 (West 2002); 38 C.F.R. §§ 3.303, 3.381, 4.150 (2012).

2.  The criteria for service connection for tooth #8, for treatment purposes, are met.  38 U.S.C.A. §§ 1131, 1110, 1712, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.150, 17.161 (2012). 

3.  The criteria for establishing service connection for compensation purposes for a dental disorder have not been met.  38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.381, 4.150 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duties to Notify and Assist

VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2011).  A May 2007 letter 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).  This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).   

The Veteran's service treatment records (STRs), VA medical treatment records, and private treatment records have been obtained; he did not identify any private/VA treatment records pertinent to the appeal.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  The Veteran has not indicated, and the record does not contain evidence, that she is in receipt of disability benefits from the Social Security Administration.  38 C.F.R. § 3.159 (c) (2).  A VA examination has been afforded the Veteran, and several addenda have been secured to address specific questions and to ensure that an adequate rationale for the opinions expressed is supplied.  38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  

There is no indication in the record that any additional evidence, relevant to the issues decided, 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 the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).  

II.  Factual Background

The Veteran urges that she injured her teeth in an accident in service.  Specifically, she maintains that she fell while on mop detail in 1962 at Fort Huachuca, Arizona, and struck her face on a concrete floor, damaging her mouth.  She urges essentially that she has endured lifelong problems with her teeth and her mouth due to this injury.  

STRs include dental records, but they do not document the aforementioned mop accident or treatment for such an accident.  Although the Veteran provided a list of people who reportedly saw the accident in February 2009, she did not provide any statements from these people.  STRs do reflect a dental examination at induction in October 1961.  Charted 'Missing teeth and existing restorations' included #3, 7, 10, 12, 15, 32, 31, 30, 20, 18.  A chart of 'Diseases, abnormalities and X-rays' below this chart included #2, 4, 5, 13, 14, 31, 29.  Restorations and treatments completed during service were noted to include #1, 2, 4, 5, 6, 8, 13 (initially restored but then extracted), 14, 18, 31, 29, 19.  Services rendered included treatment for carious teeth and extractions.  Carious teeth included #2, 4, 5, 6, 31, 1, 2, 8, 9, 28, 13, 16, 19.  Extractions included 14, 29, 13.  #14 was extracted in October 1961, #29 was extracted in January 1962 and #13, treated as carious in January 1962, was extracted in February 1963.  There was treatment for a fracture of #8 on November 5, 1962; this approximates the time frame of her alleged trauma.  It appears she had implants in the upper and lower mouth in September 1963 and a root canal in the area of #9 in August/September 1963.  

Private treatment records from Dr. JBM., dated from January to April 1998, and in July 2004, show treatment for tooth pain and decay, with bridge and crown placement in 1998.  A statement from Dr. JBM dated in July 2004 reflects his diagnosis of advanced chronic adult periodontitis localized to #2, #15, and #17, #18 area.  The Veteran was described as partially edentulous in the lower right with severe bucc-lingual atrophy, especially in the bicuspid area.  As to etiology, he reported that the plaque score was 10%.  He felt that the upper left was overloaded due to the very long spanned bridge.  He noted that she had perio-endo involvement on #2 and difficult access in the #17 and #18 area.  The prognosis was fair for dentition.  If implants were desired in the lower right quadrant for fixed restorations, a bone augmentation prior to implants would be required.  He made a referral for endodontic treatment for #2 followed by guided bone regeneration in the #15 and #17, #18 area.  

Private treatment records from L. Dentistry dated from June 2005 to August 2005 show that she was treated for the bridge on the upper left coming off.  In October 2006, she sought treatment again when the metal from the bridge was irritating her gums.  

VA treatment records from April 2004 through 2006 show complaints of abscessed gums.  She was having problems with an abscess on the gum, as well as knots on her gums in places where she has no teeth, in April 2004.  There was treatment for abscess of the right upper jaw in September 2005.  She reported then that she had been told by her dentist that she needed to get a tooth extracted in August of that year.  

The Veteran was afforded a VA examination in September 2011 VA.  The examiner noted generalized gingivitis with localized severe periodontitis.  Oral hygiene was fair.  She had many severely mobile teeth with severe bone loss.  There was a long bridge from tooth 12 to 16 which was Class IV mobile.  She had an abscess at tooth 19.  The Veteran reported that she was on mop detail in 1962 and fell on a concrete floor, loosening and damaging most of her teeth.  The examiner noted that he could find no reference to an on-the-job injury on review of the service medical and dental records.  Though he did note that several teeth were extracted during service, he noted that there was no mention of traumatic injury causing the extractions.  After a thorough review of the claims folder and military records, and listening to the Veteran, the examining dentist concluded that most likely the loss of teeth was not due to traumatic injury resulting in loss of bone of the body of the maxilla or mandible, nor is it likely that there was any osteomyelitis resulting in loss of teeth.  

In an addendum dated in January 2012, the VA dentist who performed the September 2011 examination further stated that as there was no record of any traumatic injury recorded in the Veteran's service medical record, this is most likely not a service connected condition, but rather a condition due to neglect and poor oral hygiene.  

In a September 2012 addendum, another VA dentist provided further comment.  He observed that the Veteran's chief complaint was that she fell and hit her mouth when she fell on the concrete floor back around 1962, damaged a lot of her teeth and caused many of her teeth to come out.  The examiner noted that he had reviewed the claims folder and did not find any evidence in the file of any such trauma or accident.  The examiner noted that she was missing teeth #1, 3, 12, 13, 14 and 16, and 18, 19, 29, 30, 31 and 32.  Number 3 has a root canal and is bridged from #3 to #5.  Number 9 has a root canal.  Number 11 has a root canal and a post, and the post is broke, and the root for #11 which is the anterior anchor of the bridge from 11 to 15 is going to have to be extracted.  She also had porcelain fused metal crowns on #5, 6, 7, 8, 9 and 10, and on #20 and #28.  She had severe localized bone loss on the mandibular arch.  The examiner opined that her teeth can be replaced.  Most likely she will need an upper full denture and a lower partial denture to replace some.  The X-ray reveals multiple missing teeth, severe localized bone loss, multiple root canals, and failed bridge and no evidence of dental trauma, on X-ray or in her records.  

The Veteran continues to obtain dental treatment, as reflected in records dated in May and June 2012 from F.W. Dental Care.  The Veteran underwent treatment to include retained root tip removal and bone smoothing involving tooth #19.  

In May 2012, the Veteran provided a lengthy response to the continued denial of her claim.  She indicated that she had practiced good dental hygiene since childhood, with her mother initially having her brush with baking soda when toothpaste was unavailable.  She reported that she spent so much time at the dentist office as a child that she would get agitated in the waiting room hearing the drill.  She stated that when she entered the military she did not have carious teeth, only two gold teeth which were trendy.  After her accident, her two front teeth were chipped and she had two root canals and several teeth removed.  When she was scheduled to return, she was told the teeth were not going to be replaced.  She then carefully revised her diet to accommodate the painfulness of eating.  She did not want any more loose teeth at 27 years old.  She went to a dentist in San Francisco who extracted teeth and replaced them with bridges.  She has continued brushing and flossing twice a day.  When she sought additional treatment, she was told she had gingivitis and periodontal conditions.  Records of these treatments are no longer available, she reported.  She claims she filed claims in 1986 and later in Alabama and these earlier claims were not acted upon by VA.  

III.  Service Connection for Compensation Purposes

A.  Tooth #8

The Board has reviewed all of the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Under current legal authority, compensation is only available for certain types of dental and oral conditions, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla.  See 38 C.F.R. § 4.150.  Compensation is available for loss of teeth if such is due to loss of substance of body of maxilla or mandible, but only if such bone loss is due to trauma or osteomyelitis, and not to the loss of the alveolar process as a result of periodontal disease, as such loss is not considered disabling.  Id. at Note.  Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease will be considered service connected solely for the purpose of establishing eligibility for outpatient dental treatment and cannot be considered for compensation purposes.  38 U.S.C.A. § 1712; 38 C.F.R. §§ 3.381, 4.150.

Considering the pertinent evidence in light of the governing legal authority, the Board finds that service connection for tooth #8 is not warranted.

While tooth # 8 was damaged by trauma in service, the tooth was not lost.  Tooth # 8 was fractured but is present.  Moreover, doctors have repeatedly and explicitly noted that the tooth can be replaced.  In fact, the Veteran currently has a crown on the tooth, demonstrating replacement with a suitable prosthesis.  The definition of loss is therefore not met.  38 C.F.R. § 4.150, Code 9913.  As such, compensation cannot be awarded for this tooth.  38 U.S.C.A. § 1712; 38 C.F.R. §§ 3.381, 4.150.  

As the Veteran seeks service connection for a replaceable "missing" tooth, and such a condition cannot be considered service connected for compensation purposes, the claim for service connection, for compensation purposes, must be denied.  Where, as here, the law and not the evidence is dispositive, the claim must be terminated or denied as without legal merit.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

B.  Dental Disease other than Tooth #8

The evidence indicates that in addition to tooth # 8, the Veteran lost teeth #14, 29 and 13 due to extraction during service, had the root canal at #9 and had multiple carious teeth as reflected above.  The preponderance of the evidence, specifically the September 2011 VA examination and subsequent addendum opinions, indicates that the Veteran has tooth loss due to subsequent problems due to neglect and poor oral hygiene rather than loss of teeth due to bone loss of the maxilla or mandible caused by trauma or disease (such as osteomyelitis).  

There is no evidence of trauma or disease in service to the teeth at issue; while the Veteran has alleged trauma in a fall when mopping, her allegation is not supported by the other evidence of record.  STRs show no treatment for damage to any tooth other than #8 consistent with trauma.  There is no notation of treatment for any facial or other injury consistent with the fall described by the Veteran.  Moreover, the description provided by the Veteran is itself inconsistent.  The amount of damage incurred has varied markedly.  At times she has reported only injuring her two front teeth; at other times, the allegation has ranged from many teeth to almost every tooth.  Finally, the Board notes that the Veteran's reports about other topics, including her life-long dental hygiene regimens, are inconsistent with contemporaneous records and the clinical observations of private and VA dentists.  The Veteran is simply not credible with regard to her description of trauma to her mouth.  While the evidence supports a finding of damage to a single tooth in service (# 8), that is the extent of the injury.  There were several extractions during service; such are not tantamount to dental trauma, because trauma of teeth, even extractions, in and of itself, does not constitute dental trauma.  VAOPGCPREC 5-97, 62 Fed. Reg. 15,566 (1997).

Code 9913 specifically states that the ratings only apply to bone loss through trauma or disease, and not to the loss of the alveolar process as a result of periodontal disease, since such loss is not considered disabling.  See 38 C.F.R. § 4.150.  Some bone loss is noted by private and VA dentists, in localized areas throughout the jaw.  As there is no credible evidence of the generalized trauma alleged by the Veteran, and because examiners have specifically opined that trauma therefore did not cause the bone loss, the Board has considered whether there is a disease process, other than a periodontal disease, responsible for such.

However, the competent evidence of record supports a finding that the loss is due to neglect and poor hygiene, not disease.  Dr. JBM diagnoses periodontal disease in describing the current condition.  Repeated VA examiners have also opined that the loss is due to a cause other than bone disease.  
While the Veteran may have dental caries on several teeth, treatable carious teeth will be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment, not for compensation.  See 38 C.F.R. § 3.381(a).  

In summary, the Veteran does not have tooth loss due to bone loss due to trauma or disease as described in 38 C.F.R. § 4.150 or any other dental disability (for VA compensation purposes). 

In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).

IV.  Service connection for Treatment Purposes for Tooth # 8

In determining service connection for treatment purposes, VA considers 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 the line of duty during active service.  When applicable, VA will determine whether the condition is due to combat or other in-service trauma, or whether the veteran was interned as a prisoner of war.  See 38 C.F.R. § 3.381(a), (b). 

The condition of teeth and periodontal tissues at the time of entry into active duty must be considered.  Treatment during service, including filling or extraction of a tooth, or placement of a prosthesis, will not be considered evidence of aggravation of a condition that was noted at entry, unless additional pathology developed after 180 days or more of active service.  See 38 C.F.R. § 3.381(c). 

When applicable, a determination will be made as to whether a defective, missing, or diseased tooth, or diseased periodontal tissue, is due to a combat wound or other service trauma.  See 38 C.F.R. § 3.381(b).  The significance of finding that a dental condition is due to service trauma is that a veteran will be eligible for VA dental treatment for the condition without the usual restrictions of timely application and one-time treatment.  See 38 C.F.R. § 17.161(c).   Here, as is discussed above, the fracture of tooth # 8 is due to in-service trauma.

Tooth # 8 was fractured in service in 1962, apparently when the Veteran fell while mopping.  The condition is not, however, eligible for compensation, as the tooth is not missing as a result of the trauma.  It is, therefore, a noncompensable service-connected dental condition.  Therefore, VA outpatient dental treatment for tooth #8 can be provided under Class II (a) as set forth at 38 C.F.R. § 17.161(c). 


ORDER

Service connection for tooth number 8 for compensation purposes is denied.

Service connection for tooth number 8 for treatment purposes is granted.

Service connection for a dental disease other than tooth number 8 for compensation purposes is denied.

REMAND

A Veteran may establish entitlement to VA outpatient dental treatment by qualifying under one of several categories set forth in 38 U.S.C.A. § 1712 and 38 C.F.R. § 17.161.  One potentially applicable category, Class III, permits treatment for dental problems which are aggravating a service connected disability.  38 C.F.R. § 17.161(g).

The Veteran has alleged that her dental problems, including related pain, have exacerbated her service-connected depression and anxiety.  Although at a September 2011 VA mental disorders examination the psychiatric condition was etiologically related to service-connected knee problems, VA treatment reports do indicate that dental conditions may play some role in the severity of the depression.

A VA mental disorders examination is necessary to determine whether the dental conditions are having a "direct and material detrimental effect" on the depression and anxiety.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a VA mental disorders examination.  The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination.  If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. 

The examiner must opine as to whether any currently diagnosed dental condition is at least as likely as not having a "direct and material detrimental effect" on the service-connected depressive disorder NOS with anxiety.  In other words, are dental problems making the mental disorder chronically worse, and to what extent?

A full and complete rationale for any opinion expressed is required.  If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).  Jones v. Shinseki, 23 Vet. App. 382 (2010).

2.  Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated.  Then readjudicate the claim on appeal.  If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and her representative the requisite period of time to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order.  

The appellant has the right to submit additional evidence and argument on the 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 of Veterans' Appeals  or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B , 7112 (West Supp. 2012).


____________________________________________
WILLIAM H. DONNELLY
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs