Citation Nr: 1313089	
Decision Date: 04/19/13    Archive Date: 05/02/13

DOCKET NO.  10-44 211	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUE

Entitlement to service connection for periodontitis, claimed as a dental condition, secondary to service-connected diabetes mellitus, and/or as due to Agent Orange, for compensation purposes. 


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

H. Hoeft, Counsel

INTRODUCTION

The Veteran had active military service from February 1968 to March 1972. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Portland, Oregon which denied entitlement to service connection for a dental/oral condition.  The Veteran submitted additional evidence and by way of the September 2009 rating decision the RO continued the previous denial.  

This appeal originally encompassed claims of entitlement to service connection for posttraumatic stress disorder (PTSD), and peripheral neuropathy of the upper and lower extremities.  However, as the RO granted these claims in an October 2010 rating decision, they are no longer part of the current appeal.  

Additionally, in September 2011 correspondence, the Veteran expressly withdrew his October 2010 request for a Board hearing. See September 2011 Correspondence to RO; see also October 2010 VA Form 9. 

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

The issue of entitlement to service connection for a dental disability for treatment purposes only has been raised by the record, but this issue does not appear to have been adjudicated.  In the July 2009 rating decision, the RO specifically noted that the claim for dental treatment was being referred to the appropriate VA Medical Center.  That issue is not before the Board. 


FINDING OF FACT

The Veteran's periodontal disease (diagnosed as generalized periodontitis) is not a disorder for which service connection can be granted for compensation or VA outpatient treatment purposes. 

CONCLUSION OF LAW

The criteria to establish service connection for periodontal disease for compensation purposes have not been met. 38 U.S.C.A. §§ 1110, 1712, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.381, 17.161 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duty to Notify and Assist

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  As discussed below, the facts in the present case are not in dispute; instead, resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to service-connected disabilities.  Thus, the duties to notify and assist are inapplicable and need not be considered in this case.  See Mason v. Principi, 16 Vet. App. 129 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).  

Analysis

Service connection may be granted for disability resulting from disease or injury incurred or aggravated during a Veteran's active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 

Service connection may also be granted for disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a).  The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). 

Dental disorders, however, are treated differently than other medical disorders in the VA benefits system. See 38 C.F.R. § 3.381.  Disability compensation may be provided for certain specified types of service-connected dental disorders.  For other types of service-connected dental disorders, the claimant may receive treatment only and not compensation. 38 U.S.C.A. § 1712; 38 C.F.R. §§ 3.381, 4.150, 17.161.

Dental disabilities that may be awarded compensable disability ratings are set forth under 38 C.F.R. § 4.150.  These disabilities include chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss of the mandible, nonunion or malunion of the mandible, loss of the maxilla, nonunion or malunion of the maxilla, limited temporomandibular motion, loss of the ramus, loss of the condyloid or coronoid processes, loss of the hard palate, and loss of teeth due to the loss of substance of the body of the maxilla or mandible without loss of continuity. 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. 

Compensation is only available for loss of teeth, where the lost masticatory surface cannot be restored by suitable prosthesis, if such is due to loss of substance of body of maxilla or mandible, but 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. See 38 C.F.R. § 4.15, Diagnostic Code 9913. 

Under 38 C.F.R. § 3.381, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are to be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment as provided in 38 C.F.R. § 17.161. 

Effective February 29, 2012, VA amended its adjudication regulations regarding service connection of dental conditions for treatment purposes under 38 C.F.R. § 3.381.  See 60 Fed. Reg. 4470 -01 (2011) (to be codified at 38 C.F.R. § 3.381(a)).  While the Veteran was not provided with notice of these amendments, they merely clarify existing regulatory provisions and reflect the respective responsibilities of the Veterans Health Administration (VHA) and the Veterans Benefits Administration in making determinations that concern eligibility for dental treatment.  Participation in this case by VHA is documented to the extent that the record reflects the involvement of the RO's Dental Clinic and the circumstance of this case do not suggest that the Veteran is otherwise prejudiced by the failure to notify the Veteran of the amendments to 38 C.F.R. § 3.381.  As such, the additional delay in the adjudication of this case for a remand for the sole purpose of notifying the Veteran of these amendments and for the RO to conduct the initial application of these amendments would not be justified. 

The Veteran's sole contention is that he is entitled to service connection for a dental condition, diagnosed as periodontitis, for compensation purposes because it is secondary to his service-connected diabetes mellitus, and/or due to Agent Orange exposure.  

In this regard, the Veteran has confirmed service aboard the U.S.S. Winnebago while stationed in the official waters of Vietnam in 1968 to 1969.  Accordingly, exposure to Agent Orange is conceded in this case.  However, the Veteran's diagnosed periodontal disease is not enumerated diseases associated with Agent Orange exposure under 38 C.F.R. § 3.309(e) (2012).  Moreover, as explained below, the Veteran's dental claim cannot otherwise be granted on any other basis, to include direct and/or secondary bases. 

The Veteran underwent a VA dental examination in May 2009 in order to determine the nature and severity of the claimed dental condition.  He reported that he first noticed "gum problems" in the 1990's, and that he was diagnosed with diabetes in approximately 1991.  Objectively, there was loss of bone of the maxilla which was replaceable by prosthesis; the VA examiner expressly noted that such bone loss was due to periodontal disease.  (Emphasis added).  The diagnosis was advanced, generalized periodontitis.  The examiner opined that the Veteran's periodontitis was not caused by his service-connected diabetes, nor was it related to Agent Orange exposure.  The examiner explained that periodontitis is a bacterial infection and the Veteran's periodontitis was most likely due to poor oral hygiene, high plaques levels, smoking history, and heavy tartar.  He further noted that while current dental literature supports the position that diabetes may exacerbate periodontal disease, this was not so in the Veteran's case.  

The record also contains a positive nexus opinion from Dr. B., a private dentist, which indicated that the Veteran's exposure to Agent Orange, as well as his service-connected diabetes, made him more susceptible to infection and periodontal disease.  Dr. Bailey thus opined that the Veteran's current dental problems were due to "poison" exposure (i.e., Agent Orange), and diabetes. See September 2010 Letter from Dr. Bailey. 

In sum, the Veteran's claims file contains both a negative nexus opinion (May 2009 VA opinion), and positive nexus private opinion (September 2010).  Ordinarily, such a balance of negative and positive evidence would result in a state of equipoise, thereby allowing a grant of service connection; however, in this case, service connection for periodontal disease for compensation purposes must still be denied as a matter of law.  The threshold question is whether or not the appellant has presented a legal claim for a VA benefit.  Sabonis v. Brown, 6 Vet. App. 426 (1994).  In this case, the Veteran has not presented a legal claim for a VA benefit since under 38 C.F.R. § 3.381 periodontal disease can be service-connected solely for purposes of establishing treatment.  Thus, since the Veteran is applying for service connection for a dental condition diagnosed as periodontal disease/generalized periodontitis for compensation purposes, service connection must be denied as a matter of law. Sabonis, 6 Vet. App. 426, 430 (1994).  

ORDER

Entitlement to service connection for periodontitis, claimed as a dental condition, secondary to service-connected diabetes mellitus, and/or as due to Agent Orange, for compensation purposes is denied.



____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs