Citation Nr: 1310599 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 10-32 924 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a dental disorder (claimed as weak and discolored teeth, gum bone loss, nerve damage and pyorrhea of the gums) for compensation purposes. 2. Entitlement to service connection for gastrointestinal disorder (claimed as gastritis), to include as secondary to a dental disorder. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran had active military service from December 1957 to December 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision issued by the RO. The Veteran testified before the undersigned Acting Veterans Law Judge (AVLJ) in a hearing at the RO in April 2011; a transcript of the hearing is of record. The issue of entitlement to service connection for a dental disorder for treatment purposes 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. 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 First, remand is required to obtain VA treatment records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, military records, VA medical records. 38 C.F.R. § 3.159(c)(2). During his April 2011 hearing, the Veteran suggested that additional VA records exist pertaining to treatment for his claimed dental disorder. Specifically, the Veteran testified that he received treatment for his dental disorder at the Woodland Avenue VA Outpatient Clinic. The only VA records associated with the claims file are the August 2009 VA examination report from the Philadelphia VA Medical Center and October 2009 addendum. Records of VA treatment prior to, or after, August 2009 have not been obtained or requested. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Prior to the Board's adjudication of the Veteran's claims, the RO must attempt to obtain all relevant VA medical records. Second, remand is required to obtain a clarifying medical opinion. Service connection for compensation purposes only can be established 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. Compensation is available for loss of teeth only if due to loss of substance of the body of the maxilla or mandible. Simington v. West, 11 Vet. App. 41 (1998) (emphasis added). For loss of teeth, bone loss through trauma or disease such as to osteomyelitis must be shown for purposes of compensability; the loss of the alveolar process as a result of periodontal disease is not considered disabling. 38 C.F.R. § 4.150, Diagnostic Code 9913, Note. Here, service treatment records reflect that in December 1958 the Veteran sustained fracture to the anterior maxilla on the right. He underwent reduction by means of wires and bar. The Veteran essentially asserts that as a result of that in-service trauma, his teeth loosened and had to be extracted shortly subsequent to his period of service. In a March 2010 letter, the Veteran reports that he tried to obtain the dental records that document the extraction of his teeth shortly after his period of service but that any such records were unavailable for review. Nevertheless, the Board finds that the Veteran is competent to state that he had his teeth extracted shortly following his period of active service. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). As the Veteran gives no reason to doubt his veracity in this regard, the Board also accepts his lay assertions as credible. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The August 2009 report of VA examination reflects a diagnosis of "S/P SC fracture, sports injury, maxillary anterior alveolar segment, 3 December 1958, followed by loss of teeth and alveolus, after discharge in 1961. Loss of this alveolar segment has resulted in a 30 percent deficiency of the maxillary ridge and redundant, mobile ridge mucosa that does not allow for retention of a maxillary CD. The Veteran has developed severe alveolar bone residual ridge resorption in this area of the maxilla with subsequent inability to maintain maxillary denture. He has also developed severe RRR bilaterally in the mandible subsequent to prolonged edentulism. In an October 2009 addendum, the dentist clarifies, "it is not evident that any teeth were lost as a result of fracture or in the three years subsequent to the fracture. There is no evidence that any teeth were lost because of loss of substance or the maxilla due to the trauma in December 1958 from the time of the trauma until 1961 and there is no evidence that pathology was undiagnosed at 1961 that would result in the loss of dentition. In an April 2010 statement, a private dentist stated, "the injury to your front teeth from the boxing-head butting incident, I feel, definitely resulted in the loss of your teeth. Due to the traumatic injury received any loss of teeth are completely possible." The dentist notes that the Veteran indicated that he sustained fractured teeth and concludes that from the resulting fracture of teeth and loosening of teeth from the dental injury of this nature (head-butting), it is a definite result of the loss of the teeth. Given this conflicting evidence, the Board finds that an additional medical opinion is necessary for determining the nature and etiology of the Veteran's dental disorder. Third, remand if the claim of entitlement to service connection for a stomach disorder, is required as it is inextricably intertwined. Two issues are inextricably intertwined when the adjudication of one issue could have significant impact on the other issue. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Here, the issue of entitlement to service connection for a dental disorder would impact the gastrointestinal disorder issue because a grant of service connection or an increased evaluation would affect the Veteran's potential entitlement. Accordingly, remand is required. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center, to specifically include the Woodland Avenue VA Outpatient Clinic, and obtain and associate with the paper or virtual claims file all outstanding records of treatment, to specifically include records of VA treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Notice must be provided to the Veteran and his or her representative. 2. After any additional records are associated with the claims file, obtain an opinion from an appropriate VA examiner. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. If the examiner determines an examination is required, such an examination shall be provided. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the opinion report, and a rationale provided for that conclusion. For purposes of the examination, the examiner must accept that the Veteran had his teeth extracted shortly subsequent to his period of service. The examiner must provide an opinion, in light of prior examination findings and the service and post-service evidence of record whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current loss of teeth was due to loss of substance of the body of the maxilla or mandible due to the in-service trauma. The examiner must also provide an opinion, in light of prior examination findings and the service and post-service evidence of record whether it is at least as likely as not (50 percent or greater probability) that the Veteran's loss of teeth was due to the loss of the alveolar process as a result of periodontal disease. The examiner must provide comment on both the August 2009 VA opinion and the April 2010 private examiner opinion. 3. Review the report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims of entitlement to service connection for a dental disorder and entitlement to service connection for a stomach disorder, to include as secondary to a dental disorder must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran 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). _________________________________________________ K. MILLIKAN 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).