Citation Nr: 1307262 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 11-01 211 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for dental damage. 2. Entitlement to service connection for residuals of cold injuries to the lower extremities. 3. Entitlement to service connection for residuals of head injury. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his friend, Mr. A. B. ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from May 1944 to June 1946. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama (RO), in which the benefits sought on appeal were denied. In December 2012, the Veteran testified before the undersigned at the RO. A copy of the transcript has been associated with the claims folder. As a procedural matter, the Board notes that when the Veteran filed a claim for service connection for dental damage, he did not specify whether his claim was both for treatment purposes and for compensation purposes. It is noted that under current VA regulations, entitlement to compensation and eligibility for outpatient dental treatment are determined under different criteria. 38 U.S.C.A. § 1712; 38 C.F.R. §§ 3.381, 4.150. It appears that the RO has consistently adjudicated the Veteran's claim based on analysis of the theory of entitlement for compensation purposes only, and the Veteran has not indicated any desire to initiate a claim for treatment purposes. As such, the Board will only adjudicate the Veteran's dental claim for entitlement to service connection for compensation purposes. 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). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Unfortunately, the Veteran's service connection claims must be remanded for further development. Although the Board regrets the additional delay, it is necessary to ensure due process is afforded to the Veteran, and to ensure the complete record is available for review prior to any decision. Dental Damage The Veteran seeks entitlement to service connection for dental damage. He contends that he had a tooth pulled during service, and due to the treatment, the remainder of his teeth were infected, which ultimately led to him losing the remainder of his teeth later in his life. The Veteran reports that he was informed by the military dentist that because of the infection he would lose his teeth early in his life. The Veteran began losing his teeth one-by-one in the 1980s, and he now has only two teeth remaining. See December 2012 Travel Board hearing transcript, pages 34-47; see also the Veteran's July 2010 statement in support of his claim. Service connection for compensation purposes can only be established for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla. Compensation is available for loss of teeth only if due to loss of substance of the body of the maxilla or mandible. See Simmington v. West, 11 Vet. App. 41 (1998). For service connection to be awarded for loss of teeth, bone loss through trauma or disease such as to osteomyelitis must be shown. The loss of the alveolar process as a result of periodontal disease is not considered disabling. See Note to Diagnostic Code 9913, 38 C.F.R. § 4.150. A review of the Veteran's available service dental records contained in the claims folder show that he had four teeth missing (two on the upper and two on the lower) upon his entrance into service. The service dental records also show he received dental treatment in September 1945. It appears that he sought treatment at the dental clinic at least three times in September 1945. Undated dental records identified that he had three restorable teeth (two on the upper and one on the lower) and it was marked that dental foci was suspected. The service dental record did not indicate whether there was evidence of a dental trauma during service. There was no indication of any jaw bone involvement in service. The report of a June 1946 examination prior to separation shows that the Veteran had the same four teeth missing as marked at the time of his entrance and no other dental issues were noted. No post-service dental records have been associated with the claims folder. The Board notes that during the December 2012 Travel Board hearing, the Veteran identified private dental treatment from Dr. C. P. over the years. The RO has not yet sought these records. VA is required to assist a claimant in obtaining evidence necessary to substantiate a claim for benefits. It does not appear that efforts were made to obtain these records. 38 C.F.R. § 3.159(c) (2012). The Board finds that obtaining these records would assist in determining whether the Veteran has a current dental disability for VA compensation purposes. Residual of Head Injury The Veteran claims entitlement to residuals of a head injury that he incurred during his period of service. The Veteran reports that he sustained a head injury from being stuck in the head with a block of ice, which rendered him unconscious for approximately thirty minutes. He denies seeking any treatment following the head injury, but he reports experiencing a headache for a while after the injury and he continues to experience symptoms of tinnitus since the injury. See December 2012 Travel Board hearing, 24-30. He denied any other symptomatology as a residual of his in-service head injury. Based on a review of the evidence of record, the Board finds that a remand is warranted in order to afford the Veteran a VA examination in conjunction with his service connection claims for residuals of a head injury. 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2010); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Residuals of Cold Injuries to the Lower Extremities The Veteran seeks entitlement to service connection for residuals of cold injuries to the lower extremities. He contends that he sustained cold injuries to his feet while he was stationed in Italy, when he performed patrol duties during the winter months of 1944 and 1945. The Veteran reports that he was patrol duty for several days at a time, without proper winter protection gear, and his feet would get cold. He experienced symptoms of tingling, aching, peeling skin, and toenail dysfunction in his feet. He treated his feet with warm soak baths. The Veteran was provided with a VA examination in December 2011 to determine the nature and etiology of his claimed residuals. The Veteran was diagnosed with peripheral neuropathy in his lower extremities based on clinical evaluation. The examiner provided an unclear medical conclusion regarding whether the Veteran's current diagnosed disorder was related to his in-service cold injuries to his lower extremities. At first, the examiner states that she could not provide a medical conclusion without resorting to mere speculation. The examiner then stated that his symptoms of pain, numbness and tingling could be due to his cold injury or his symptoms could be due to his diabetes mellitus or possible small vessel vascular disease. It appears that he VA examiner relied on a December 2011 private medical statement from Dr. R. L., in which he indicated that the Veteran's peripheral neuropathy and impaired circulation were related to his diabetes mellitus. It does not appear that Dr. L. reviewed the Veteran's claims folder or the Veteran's lay reports of continuity of symptomatology in conjunction with his medical conclusion. Pertinently, the Board observes that the report of a March 1982 VA examination for non-service connected pension confirms that the Veteran's long history of bilateral leg pain and weakness with standing for prolonged periods. Moreover, it does not appear that the Veteran had been diagnosed with diabetes mellitus at the time of the 1982 VA examination. Given the above ambiguous medical conclusion, the evidence is unclear whether the Veteran's current diagnosed disorder is related to his in-service cold injuries to his lower extremities. Thus, the Board finds that a new VA examination is needed to determine the nature and etiology of his claimed residuals of cold injuries to his lower extremities. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Contact the Veteran and ask for his assistance in obtaining any outstanding dental treatment records from Dr. C. P.. All development efforts must be in writing and associated with the claims file. 2. After all the available dental records have been associated with the claims folder, the RO/AMC must review the entire record and determine whether any additional development is needed, to include providing the Veteran with a VA dental examination. 3. The Veteran must then be afforded the appropriate VA medical examination to determine the presence of residuals of a head injury and, if any such residuals are present, the nature and etiology thereof. The Veteran's claims file must be made available to and contemporaneously reviewed by the examiner. All indicated tests and studies must be accomplished. After a review of the service and post-service treatment records, and the Veteran's contentions as to a head injury in service, the examiner must opine as to whether it is at least as likely as not (a 50 percent or greater probability) that any found residuals of a head injury are related to the Veteran's alleged in-service injury or are otherwise related to the Veteran's active duty service. The examiner must state whether any found residuals of a head injury are consistent with the alleged in-service injury. The examiner must also provide an opinion as to the etiology as to all disorders found that have been specifically claimed by the Veteran to be the result of his in-service head injury. A complete rationale for all opinions must be provided. 4. After all the available records have been obtained, the RO must arrange for the Veteran's claims folder to be reviewed by the appropriate examiner to provide a medical opinion on whether the Veteran has any current residuals from in-service cold injuries to his lower extremities (e.g., peripheral neuropathy and impaired circulation). The claims file must be made available to the examiner, who must review the entire claims folder in conjunction with the examination. All the pertinent findings must be set forth in detail. In the examination report, the examiner must identify the Veteran's current disabilities, and then provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed disability is related to in-service cold injuries. The examiner must acknowledge and discuss the Veteran's report of in-service cold exposure while in Italy and of having cold symptomatology since service, e.g., his observations of bilateral foot pain, tingling, numbness, peeling skin, and toenail dysfunction. The examiner must also consider the March 1982 complaint of bilateral leg pain and weakness and the Veteran's current diagnosis of diabetes mellitus. A complete rationale for all opinions must be provided. 5. Thereafter, the Veteran's claims must be re-adjudicated in light of a review of the entire claims folder. If any benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case (SSOC). An appropriate period of time must be allowed for response. Thereafter, the case must be returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal 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). _________________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).