Citation Nr: 1309328	
Decision Date: 03/19/13    Archive Date: 04/01/13

DOCKET NO.  08-06 367	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut


THE ISSUES

1.  Entitlement to service connection for residuals of dental trauma for compensation purposes.

2.  Entitlement to service connection for residuals of dental trauma for dental treatment purposes for teeth other than #1, 8, 14, and 31.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant




ATTORNEY FOR THE BOARD

H. Seesel, Counsel


INTRODUCTION

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 Veteran served on active duty from December 1941 until December 1945. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut.

The Veteran had testified at a Video Conference hearing before a Veterans Law Judge in September 2010.  Because this Veterans Law Judge is no longer employed by the Board, the Veteran was asked in January 2013 if he wished to appear at another hearing, pursuant to 38 C.F.R. § 20.707 (2012).  The letter informed the Veteran that if no response was received within 30 days the Board would assume he did not want another hearing.  The Veteran did not respond to this letter.  Therefore, no further action concerning a Board hearing need be taken. 

In the prior December 2008 Board decision, the Board referred several issues to the RO for adjudication.  Specifically, the Board noted that the Veteran filed a claim for entitlement to an increased rating for irritable bowel syndrome/gastroesophageal reflux disease/residuals of a cholecystectomy, a claim to reopen service connection for a respiratory disability and alleged clear and unmistakable error in a July 2005 rating decision that found the Veteran's residual scar from a cholecystectomy was more appropriately rated in combination with his symptoms of irritable bowel syndrome.  A review of the record does not reflect any development or adjudication of these claims has taken place.  Accordingly these issues are again REFERRED to the AOJ.

The record also includes a November 2012 statement where the Veteran continues to allege that he deserves a compensable evaluation for the scar under his chin.  This issue was previously denied by the Board in October 2010 and affirmed by the United States Court of Appeals for Veterans Claims in May 2012.  As such, the Board construes this November 2012 statement to be a new claim for an increased rating.  This issue has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and is REFERRED to the AOJ for appropriate action. 

The issue of entitlement to service connection for residuals of dental trauma for dental treatment purposes for teeth other than #1, 8, 14, and 31, is being REMANDED and is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

The Veteran does not have a dental disability for which compensation can be authorized. 


CONCLUSION OF LAW

The criteria for establishing service connection for residuals of dental trauma for compensation purposes have not been met.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.381, 4.150 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 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.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); 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.  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) includes notice that a disability rating and an effective date for the award of benefits will be assigned if the claim is granted.  

In the present case, letters sent to the Veteran in January 2006, March 2006, April 2008, December 2008 and October 2010 fully addressed all notice elements.  The claim was readjudicated in an October 2012 supplemental statement of the case.  Accordingly, the duty to notify has been met.  

VA also has a duty to assist the Veteran in the development of the claim which includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  Here, the record includes the Veteran's service treatment records, VA outpatient treatment records, letters from private physicians, lay statements and the reports of VA examinations.  Additionally, the Veteran provided testimony at a September 2010 Board hearing.  The presiding Veterans Law Judge clearly set forth the issue to be discussed, sought to identify pertinent evidence not currently associated with the claims folder, and elicited further information as to the dates and locations of treatment when appropriate.  As such, the Board finds that VA fully complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). 

The Board notes that although the Veteran's treating dentist provided a statement in January 2009, the complete treatment records are not associated with the claims file.  Similarly, the March 2012 VA examination provided an opinion as to the etiology of the tooth loss that did not include a complete rationale.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed); 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.").

Given the above, the Board carefully considered whether a remand for complete treatment records and an updated opinion to include a rationale was necessary.  In this case, however, the issue presented involves a claim that cannot be substantiated as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); VAOPGCPREC 5-2004 (June 23, 2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim or assist in developing a claim that cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit).  As will be discussed in detail below, the March 2012 VA dental examination includes findings that preclude a claim for service connection for dental trauma for compensation purposes.  38 C.F.R. § 3.159 (d) (noting VA will refrain from or discontinue providing assistance in obtaining evidence when the application indicates there is no reasonable possibility that assistance would substantiate the claim, including circumstances where the claimant is ineligible for the benefit sought because of lack of qualifying service, lack of Veteran status, or other lack of legal eligibility).  In fact, during the September 2010 Board hearing, the Veteran testified that he knew and understood that he was not going to receive a compensable evaluation for his teeth.  

Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of his claims.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). 

Law and Analysis

The Veteran seeks service connection for residuals of dental trauma for compensation purposes.  He contends that an injury in service where he was pushed from behind, hit the deck and was wounded ultimately caused him to lose his teeth.  

Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  That an injury incurred in service alone is not enough.  There must be chronic disability resulting from that injury.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).  

Under current VA regulations, compensation is only available for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150 (2012), 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 such is due to loss of substance of body of maxilla or mandible due to trauma or disease such as osteomyelitis, but not periodontal disease.  Otherwise, a Veteran may be entitled to service connection for dental conditions including treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease, for the sole purposes of receiving VA outpatient dental services and treatment, if certain criteria are met.  38 U.S.C.A. § 1712 (West 2002); 38 C.F.R. §§ 3.381, 17.161 (2012); Simington v. West, 11 Vet. App. 41, 44(noting the distinction between replaceable missing teeth which can be service connected for treatment purposes only and teeth lost "as a result of 'loss of substance of body of maxilla and mandible' which can be assigned ratings anywhere from 0 to 100 % for compensation purposes").  

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).

The Veteran's service treatment records reflect that he entered service with several missing teeth.  A review of the inservice dental treatment records indicate that the Veteran lost teeth #8 and 18 (#8 and 31 by VA's numbering system) at some point during his service.  Most significantly, a May 1944 service treatment record reported that the Veteran had a history of a chin laceration and broken upper central incisors from a disturbance on the ship when the Veteran was struck by an unknown object.  The note indicated teeth # 8 and 9 were broken off and tooth #8 was very loose.  The laceration was sutured and the note explained the Veteran was taken ashore and tooth 8 was extracted.  

The Veteran was afforded a VA examination in June 2006.  The examiner concluded the Veteran had a history of traumatic injury during service resulting in a loss of maxillary teeth and he currently had a full upper denture and partial lower denture.  The examiner noted there was moderate to advanced alveolar bone loss.

The Veteran was afforded another VA examination in March 2012.  The examiner reviewed the claims file and considered the Veteran's subjective history, including the injury where he sustained a laceration and broken and lost teeth.  After examination of the Veteran, the examiner concluded the Veteran's dental diagnosis was loss of teeth.  The examiner indicated the Veteran did not have dental or oral conditions of the mandible, maxilla, anatomical loss or bony injury leading to the loss of teeth, osteomyelitis, osteoradinonecrosis, or bisphosphonate-related osteonecrosis of the jaw, tumors or neoplasms.  The Veteran had not lost any part of the mandible or mandibular ramus, condyle of the mandible, coronoid process of the mandible.  The examiner noted there was no injury resulting in malunion or nonunion of the mandible.  The examiner found the Veteran had not lost any part of the maxilla or the hard palate or sustained an injury resulting in malunion or nonunion of the maxilla.  The examiner indicated he lost all upper teeth and 14 lower teeth but reported that he did not have loss of teeth due to loss of substance of the body of the maxilla or mandible without loss of continuity and the loss of teeth was not due to trauma or disease (such as osteomyelitis).  The examiner also indicated the masticatory surfaces could be restored by suitable prosthesis.  

The medical and lay evidence establish that the Veteran has missing teeth.  The Board acknowledges that the Veteran sustained an injury during service which resulted in the loss of tooth #8 and broken tooth number 9.  In spite of this injury, however, service connection for loss of teeth can be established for compensation purposes only if the loss is due to the loss of the body of the maxilla or mandible due to trauma or disease such as osteomyelitis.  38 C.F.R. § 4.150, Diagnostic Code 9913 (2012).  No medical professional has provided any opinion that the Veteran experienced any loss of the body of the maxilla or mandible due to the in-service trauma which resulted in the loss of teeth.  While the June 2006 VA examination reflected moderate to advanced alveolar bone loss, the examiner never indicated there was a loss of substance of the body of the maxilla or mandible.  Significantly, after review of the record and examination of the Veteran, the March 2012 VA examiner concluded that the Veteran did not have any loss of the body of the maxilla or mandible.  

While both VA examinations noted that the Veteran had several missing teeth, the March 2012 VA examiner indicated they were replaceable.  As noted above, 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.  38 C.F.R. § 3.381.  

Furthermore, the Veteran testified at the September 2010 Board hearing that he knew and understood that he was not going to receive a compensable evaluation for his teeth.  The presiding Veterans Law Judge clarified with the Veteran and his representative that although the RO had set the issue up as one for dental trauma for compensation purposes, the Veteran was actually seeking dental treatment.  

Accordingly, as the Veteran does not have loss of the substance of the body of the maxilla or the mandible, service connection for compensation purposes must be denied.  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).


ORDER

Entitlement to service connection for residuals of dental trauma for compensation purposes is denied.


REMAND

Concerning the issue of entitlement to service connection for residuals of dental trauma for dental treatment purposes for teeth other than #1, 8, 14, and 31 (which are already service connected for treatment purposes), the record reflects that the RO denied the claim in a October 2012 rating decision.  Subsequently, in November 2012 the Veteran indicated that he received the October 22, 2012 letter and was "not at all pleased with the Board's [sic] decision concerning [his] care."  The October 22, 2012 letter enclosed the RO's denial of service connection for dental treatment purposes for teeth other than #1, 8, 14, and 31.  

Under 38 C.F.R. § 20.201, a Notice of Disagreement need not contain specific language and only needs to show terms that can be reasonable construed as a disagreement with the rating decision.  In this case, the Board finds the November 2012 statement clearly reflects disagreement with the denial of service connection for dental treatment.  The claims file does not contain any Statement of the Case (SOC) for the issue and the Board must therefore remand it for the issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238, 240 (1999). 

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.)

The AOJ should issue a statement of the case that addresses the issue of entitlement to service connection for residuals of dental trauma for dental treatment purposes for teeth other than #1, 8, 14, and 31.  The Veteran should be informed that, in order to perfect an appeal of these issues to the Board, he must file a timely and adequate substantive appeal following the issuance of the statement of the case. 


The appellant has the right to submit additional evidence and argument on the matter or 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).


______________________________________________
H.N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs