Citation Nr: 1308340 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 10-48 887 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for a dental disability for compensation purposes. REPRESENTATION Veteran represented by: Connecticut Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from July 2006 to October 2009. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newington (Hartford), Connecticut, which, in relevant part, denied entitlement to service connection for a dental condition involving the upper and lower jaw. The Veteran testified at a hearing before the undersigned Veterans Law Judge in April 2011. A transcript of that hearing is of record. In June 2011, the Board remanded the Veteran's claim for additional development. The issues of entitlement to service connection for a dental disability for treatment purposes only, and entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for dental treatment provided by VA have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). See April 2011 Board hearing transcript; see also Mays v. Brown, 5 Vet. App. 302 (1993). Therefore, the Board does not have jurisdiction over them, and they are referred to the RO for appropriate action. Specifically, the AOJ should refer the claim for dental treatment to the appropriate VA Medical Center. FINDINGS OF FACT 1. The Veteran does not have lost teeth as a result of loss of substance of the body of the maxilla or mandible. 2. The Veteran's claimed dental disability involving the upper and lower jaw is not otherwise subject to service-connected compensation. CONCLUSION OF LAW The criteria for entitlement to service connection for a dental disability for compensation purposes have not been met. 38 U.S.C.A. §§ 1110, 1712 (West 2002); 38 C.F.R. §§ 3.1, 3.301, 4.150 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b) (2012). This notice must be provided prior to an initial unfavorable decision on the claim by the Agency of Original Jurisdiction. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, the VCAA requires notice of what information and evidence not previously provided, if any, that is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Veteran has received essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Prinicipi, 353 F.3d 1369 (Fed. Cir. 2004). A February 2010 VCAA letter from the RO informed the Veteran of all elements required to substantiate his dental condition claim in accordance with 38 C.F.R. § 3.159(b). In light of his claim for service connection for a dental disability for compensation purposes, no disability rating or effective date can be assigned, so there can be no possibility of prejudice to the Veteran under the holding in Dingess. Regarding the duty to assist, the RO has obtained the Veteran's service treatment records (STRs) and VA treatment records, and has afforded him two VA examinations. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The RO/AMC substantially complied with the Board's June 2011 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). The Board remanded the Veteran's claim in an effort to obtain more records pertaining to his dental care during service and to obtain clarification of a prior medical opinion or afford him a new examination. Here, VA's Appeals Management Center attempted to obtain both private and service records pertaining to the Veteran's dental treatment during his time in service, however, efforts to obtain additional service records yielded no results and the Veteran was unable to provide additional information sufficient to request private dental records from his time in service, and he did not have copies of these records. The Veteran has not indicated that there are other outstanding treatment records that would be relevant to the claim. The Veteran was afforded a new VA dental examination in July 2012, and the examination report contains sufficient information and medical comment to adjudicate his dental disability claim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran testified at a hearing in support of his claim before the undersigned in April 2011. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that VA employees, including Board personnel, have two duties in conducting hearings. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the issues were identified. The VLJ and the Veteran's representative asked specific questions directed at identifying outstanding evidence that could substantiate his claim. He was asked about treatment and was asked questions aimed at eliciting evidence that he had symptoms meeting the criteria for service connection for a dental disability. Information provided at the hearing lead to the Boards remand to get treatment records and afford him a new examination. As such, the Bryant duties were met. The duty to assist has, therefore, been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating his service connection claim on appeal. II. Service Connection A. Governing Law and Regulations Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit, citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). The Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson, 2 Vet. App. at 618. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). B. Analysis With respect to dental disabilities, service-connected 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 (2012). Compensation is available for loss of teeth only if such is due to loss of substance of the body of the maxilla or mandible, and 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, are not disabling conditions, and may be considered service-connected solely for the purpose of determining entitlement to dental examinations or outpatient dental treatment under the provisions of 38 C.F.R. § 17.161 (2012). 38 C.F.R. § 3.381(b) (2012). While a claim of service connection for a dental disorder is also a claim for VA outpatient dental treatment, as noted in the introduction, such a claim for VA outpatient dental treatment has not yet been adjudicated by the AOJ, therefore that issue is not before the Board and is referred to the AOJ. See Mays, 5 Vet. App. 302. In the instant case, the evidence of record shows that the Veteran has been treated for multiple dental conditions prior to, during, and since his period of active service. His July 2006 dental examination prior to his entry into active service noted that he was missing eight teeth. He was additionally noted to have undergone root canal treatment on five teeth. During his service, he was noted to have underdone multiple dental procedures, including treatment for multiple caries, further root canal treatment, and at least one extraction. A review of his post-service treatment records reveals that he received VA dental treatment between March and May 2010. During a March 2010 consultation, the dentist noted that because he had a lack of interocclusal space, the only non-surgical way to restore the Veteran's edentulous areas with implants would be to open up his occlusal vertical dimension (OVD) and restore every tooth in the arch, but that that would require a lot of work on the Veteran's part, and due to issues with the particular laboratory used, a full mouth rehabilitation case would be questionable. The conclusion reached between the dentist and the Veteran was that after removing tooth number 11, he would be provided a flexite partial denture with a clasp element that would blend in more reasonably with his existing tooth structure. Tooth number 11 was subsequently extracted in April 2010. In May 2010, he was seen for a wax fitting of the maxillary flexite removable partial denture. He was noted to be happy with the result and the plan was to continue processing. The Veteran was afforded a VA dental examination in connection with his service connection claim in May 2010. During the examination, the Veteran reported having some teeth extracted prior to service, but that he had more teeth extracted during his service. He indicated that he had multiple root canals on tooth number 4 during service and that after multiple build ups, the tooth fell apart and needed to be extracted. On examination, results were negative for lymphadenopathy, swellings, skin/mucosal pathology, temporomandibular joint and muscle disorder, asymmetry and trauma. There was no popping, clicking, crepitus, pain on opening or closing, or deviation of mandible on opening or closing. The Veteran was noted to have generally erythematous and edematous gingiva. He had generalized mild supragingival plaque, and there appeared to be incomplete passive eruption on the left lower posterior dentition. He was noted to be missing teeth numbers 1, 3, 4, 12, 13, 14, 16, 17, and 32. Restorations included various types of amalgams and/or root canal treatment for teeth numbers 2, 5, 18, 19, 20, 21, 22, 23, 24, 28, 29, 30, and 31. He was noted to be a severe class II, division II, patient with limited interocclusal space. The examiner noted that there was loss of masticatory units on the maxillary left due to missing premolars and a molar. He also noted that teeth numbers 3, 4, 12, 13, and 14, had been replaced with a removable prosthesis. Finally, the examiner noted that the Veteran's missing teeth and mild bone loss could be replaced with a removable prosthesis. He indicated that it was his opinion that these were due to the Veteran's malocclusion, and that a fixed reconstruction would involve a full mouth rehabilitation which would involve opening the Veteran's OVD and restoring every tooth in the mouth, which could involve orthodontic treatment as well. At the April 2011 hearing the Veteran testified that he received extensive dental treatment from the service department and private providers. He believed that the service department treatment was incompetent and ultimately led to the removal of his teeth. He did not report trauma, other than that associated with dental treatment. In the June 2011 remand the Board sought clarification as to whether bone loss identified by the May 2010 VA examiner was due to trauma or non-periodontal disease during the Veteran's service. The Veteran was afforded his most recent VA dental examination in July 2012. The Veteran reported feeling dissatisfied with the dental care received during service. He reported losing fillings, crowns, and only being provided with fluoride treatment when more extensive dental work was needed. The examiner noted the Veteran's dental diagnosis as loss of teeth due to caries. The missing teeth were noted to be numbers 1, 3, 4, 11, 12, 13, 14, 16, 17, and 32. The examiner indicated that his masticatory surfaces could be restored by suitable prosthesis. The examiner specifically noted that the Veteran had not lost any part of the mandible or mandibular ramus. Similarly, he was specifically found to have not lost any part of the maxilla. Accordingly, the examiner concluded that the Veteran's loss of teeth was not due to the loss of substance of the body of the maxilla or mandible. She additionally noted that the Veteran s loss of teeth was not due to trauma or disease. The examiner indicated that the Veteran had never been diagnosed with osteomyelitis or osteoradionecrosis of the mandible, or with bisphosphonate-related osteonecroiss. No benign or malignant neoplasms were found to be present. No disfiguring scars to the mouth or lips were found, and there was mouth injury resulting in impairment of mastication or loss of all or part of the tongue. No speech impairment was noted. No other pertinent findings, complications, conditions, signs or symptoms related to the Veteran's diagnosed loss of teeth were found. Clinical examination revealed missing teeth, poor oral hygiene, plaque, calculus, carious teeth, and erythematous soft palate and palatal pillars. There was no temporomandibular joint tenderness, no clicking or popping, and no deviation of the mandible. All ranges of motion were within normal limits. The examiner noted that the bone loss identified during the Veteran's May 2010 VA dental examination was probably related to his missing teeth. She noted that the previous examiner did not identify periodontal bone loss or trauma at that time. Additionally, the Veteran reported that his teeth were lost because of lost fillings and crowns; he did not report a history of military or nonmilitary trauma between July 2006 and October 2009. There was no clinical evidence of trauma or wound, no scars, and there were not any plates or screws in the bone. There was no medical documentation to support a history of trauma. Periodontal examination was remarkable only for plaque, calculus, and moderate generalized gingivitis due to poor oral hygiene. No periodontal bone loss was identified. C. Analysis Based on this examination report, the Veteran's only diagnosed dental disability for which service connection may be considered is missing teeth. However, the thorough July 2012 VA examination report concluded that the Veteran's loss of teeth was not due to loss of substance of the body of the maxilla or mandible. Moreover, there was no clinical evidence of trauma. The evidence reflects that the bone loss noted on the May 2010 VA examination report was due to the loss of teeth and not any specific trauma, the evidence still did not support a finding that the Veteran had any tooth loss due to loss of substance of the body of the maxilla or mandible. Bone loss due to missing teeth would not be considered as due to trauma. See VAOPGCPREC 5-97 (1997). In addition, the intended effects of dental treatment to ameliorate dental disability would not be deemed dental trauma. Nielson v. Shinseki, 607 F.3d 802 (Fed.Cir.2010). In Nielson the Federal Circuit left open the possibility of service connection for unintended consequences of in-service dental care. Id at 808. This is essentially the Veteran's contention in this case. It would require medical expertise to provide a competent opinion that the Veteran's current dental condition is the result of negligent treatment in service. As a lay person, the Veteran lacks this expertise. 38 C.F.R. § 3.159(a)(1)-(2) (2012). There is no competent medical opinion that the current condition is related to improper treatment in service and the VA examiner, although considering the Veteran's reports, opined that the current condition is related to poor dental hygiene. There is no evidence of in-service dental trauma. The Veteran has not reported such trauma, other than that arguably associated with in-service treatment. As the July 2012 VA examiner noted, there was no clinical evidence of dental trauma. Based on the foregoing evidence, the Board finds that there is no evidence of record to suggest that the Veteran's diagnosed loss of teeth is the result of loss of substance of the body of the maxilla or mandible. His current caries and gingivitis or periodontal disease are not considered service connectable for compensation purposes. 38 C.F.R. § 3.381(b). In the absence of any other current compensable dental disability, service connection for a dental condition for compensation purposes cannot be granted. For this reason, the Board finds that the preponderance of the evidence is against the claim for service connection for a dental condition for compensation purposes. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). The evidence regarding this claim is not so evenly balanced so as to allow for application of the benefit of the doubt rule as required by law and VA regulations. See 38 U.S.C.A. §5107 (West 2002). Accordingly, the Veteran's claim for service connection for a dental condition for compensation purposes must be denied. ORDER Entitlement to service connection for a dental condition for compensation purposes is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs