Citation Nr: 1309449 Decision Date: 03/20/13 Archive Date: 04/01/13 DOCKET NO. 06-07 785 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a dental disorder, to include as secondary to diabetes mellitus, for compensation purposes. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from March 1966 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for periodontal disease. This case was initially before the Board in February 2008, when the Board reopened the claim due to receipt of new and material evidence, and remanded the case for further development. The Board again remanded the case for further development in February 2010, including obtaining a VA dental examination. That development having been completed, the case has been returned to the Board at this time for further appellate review. Unfortunately, the appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. As noted in the February 2010 remand, the June 2005 rating decision denied service connection for periodontal disease. The February 2006 statement of the case, however, noted that under the provisions of 38 C.F.R. § 3.381, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease will be considered for service-connected solely for the purpose of establishing eligibility for VA outpatient dental treatment as provided in 38 C.F.R. § 17.161. The RO went on to state that there was no authority under governing regulations to grant service connection for periodontal disease for purposes of an award of disability compensation benefits and, as such, the claim of service connection for periodontal disease for compensation purposes was denied. The RO noted that service connection for purposes of establishing eligibility for outpatient dental treatment had previously been granted for teeth numbers 8 and 9. A claim of service connection for a dental condition is also considered to be a claim for VA outpatient dental treatment. Mays v. Brown, 5 Vet. App. 302 (1993). While the RO had adjudicated the claim of service connection for compensation purposes, the record does not reflect that the claim for outpatient dental treatment (other than for teeth 8 and 9) has been adjudicated by the RO or the VA Medical Center. Accordingly, the issue of service connection for a dental disorder, for VA outpatient dental treatment, 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 it, and it is referred to the AOJ for appropriate action. REMAND In the February 2010 remand, the Board ordered that the Veteran be afforded a VA examination in order to determine whether the Veteran's "present chronic dental disorder was either incurred or aggravated as a result of his service-connected diabetes mellitus." The Veteran underwent examination for his dental condition in April 2011, where he was diagnosed with moderate to severe chronic periodontitis. The examiner opined that the Veteran's dental disorder, however, was less likely than not either incurred or aggravated as a result of his diabetes mellitus. He noted that the "[r]eview of records and patient history reveals problems related to periodontal disease as early as 1970 which predated his proposed diagnosed of diabetes mellitus by 27 years." The Board notes that the examiner's rationale addresses causation in this case, but does not address aggravation specifically. Accordingly, the Board finds that a remand is necessary at this time in order to obtain an addendum opinion which clarifies whether the Veteran's diabetes mellitus has aggravated his periodontitis. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise); see also Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). It additionally appears that the Veteran had a VA dentistry consultation in April 2011, at which time a dental image was taken; it was noted that interpretation and documentation would be in the dental note, however, no further dental notes are of record. The Board therefore also finds that a remand is also necessary because it appears that there may be outstanding VA treatment records which have not been obtained and associated with the claims file; such should be obtained and associated with the claims file on remand, as should any ongoing private and VA treatment records. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain any relevant VA treatment records from the Martinsburg or Richmond VA Medical Centers, or any other VA medical facility that may have treated the Veteran's dental condition, which are not already of record, and associate those documents with the claims file. 2. Ask the Veteran to identify any private treatment that he may have received for his dental disorder, which are not currently of record. After securing the necessary release forms, attempt to obtain and associate those identified records with the claims file. If records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 3. Furnish the Veteran's claims file to the April 2011 VA examiner in order to provide an addendum to the April 2011 VA examination report. The examiner should specifically state in his addendum that the entire claims file has been reviewed, including this REMAND order as well as his previous VA examination report. After review of the claims file, including his previous examination report, the VA examiner should opine whether the Veteran's chronic periodontitis is more likely, less likely, or at least as likely as not (50 percent or greater probability) aggravated (i.e., permanently worsened beyond the normal progression of that disease) by his service-connected diabetes mellitus. The examiner should specifically address Dr. A.K.R., DDS's October 2004 letter in his opinion, as well as any internet articles of record. All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. If the April 2011 VA examiner is unavailable to respond, a comparably qualified examiner can render an addendum which addresses the above. If the April 2011 VA examiner or any subsequent examiner cannot opine to the above without examination of the Veteran, he should be afforded an examination. 4. Following the above development, the RO/AMC should review the claims file and readjudicate the Veteran's claim of service connection for a dental disorder, to include as secondary to diabetes mellitus, for compensation purposes. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ J. A. MARKEY 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).