Citation Nr: 1314499 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 12-24 244 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for a dental disorder, characterized as the loss of his two front upper teeth (teeth #s 8 and 9) for compensation and/or treatment purposes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from June 1943 and February 1946. This matter is on appeal from a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The Veteran testified before the undersigned Veterans Law Judge in March 2013. A transcript of the hearing is of record. The Board notes that the Veteran spells his name differently than he did on his DD-214 when he left active duty service in 1946. Although this fact does not impact this particular decision, the RO should be aware of this when undertaking any future development. 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). FINDING OF FACT The Veteran does not have a compensable dental condition nor does he have a dental condition or disability as a result of trauma during his active military service, and does not otherwise meet the requirements for service connection for the limited purpose of receiving VA outpatient dental treatment. CONCLUSION OF LAW The criteria for service connection for a dental disorder, characterized as the loss of his two front upper teeth (teeth #s 8 and 9) for compensation and/or treatment purposes, have not been met. 38 U.S.C.A. §§ 1131, 1721, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.381, 4.150, 17.161 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction of any information and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in September 2011 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. It also provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has obtained the Veteran's VA outpatient treatment records, and the Veteran has submitted his own statements in support of this claim. While the RO determined that the Veteran's service treatment records were unavailable, the Board is satisfied that a diligent effort was made to acquire them. Finally, the Veteran was also afforded a hearing before the undersigned Veterans Law Judge in March 2013. The hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), which consist of (1) fully explaining the issue and (2) suggesting the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Notably, the Veteran was specifically asked about the circumstances under which he lost his teeth and the symptoms he experiences as a result. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. 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). Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). In some cases, the second and third elements of Shedden and Caluza may be established through a demonstration of continuity of symptomatology for certain specific chronic disorders. 38 C.F.R. § 3.303(b); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). However, the United States Court of Appeals for the Federal Circuit has recently held that service connection may be established under 38 C.F.R. § 3.303(b) only for disorders considered to be "chronic" under 38 C.F.R. § 3.309(a). Dental disorders are not considered a chronic disorder under 38 C.F.R. § 3.309(a), and may not be service connected under 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Nevertheless, evidence of continuous symptoms since active duty is still a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). The development undertaken by the RO in this case indicates that the Veteran's service treatment records are unavailable. The Board recognizes that in such cases there is a heightened obligation to assist the appellant in the development of the case, to explain findings and conclusions, and to consider carefully the benefit of the doubt rule in cases, such as in this situation, in which records are presumed to have been or were destroyed while the file was in the possession of the government. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); see also Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). However, the legal standard for proving a claim for service connection is not lowered. Rather, it increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In the context of dental claims, the United States Court of Appeals for Veterans Claims (Court) has specifically held that a claim for service connection for a dental disorder is also a claim for VA outpatient dental treatment under 38 C.F.R. § 3.381 (2010). Mays v. Brown, 5 Vet. App. 302 (1993). Thus, adjudication of the Veteran's claim for service connection must also include consideration of service connection for the purpose of establishing eligibility for outpatient dental treatment as set forth in 38 C.F.R. § 17.161 (2012). See also Douglas v. Derwinski, 2 Vet. App. 435, 440 (1992) (en banc) (holding that the Board is required to consider a veteran's claim under all applicable provisions of law and regulation whether or not the claimant specifically raises the applicable provision); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Service connection for compensation purposes can be established only for the specific 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 due to loss of substance of the body of the maxilla or mandible. See Simmington v. West, 11 Vet. App. 41 (1998). For loss of teeth, bone loss through trauma or disease such as due 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. See Note to Diagnostic Code 9913, 38 C.F.R. § 4.150. In this case, the Veteran is claiming entitlement to service connection for the loss of his two upper front teeth (teeth #s 8 and 9). Although the service treatment records are unavailable, he has been fairly consistent in his recollections that his upper front teeth were removed by a dentist after he developed an abscess while serving in the European Theater of Operations during World War II. At his hearing before the Board in March 2013, he specifically explained that his teeth were pulled while he was located in a town on the French-German border. The Board notes that, while he was in a combat theater, it is unclear whether he actually participated in combat operations against the enemy. See VAOPGCPREC 12-99 (Oct. 18, 1999) ("engaged in combat with the enemy" requires that the veteran have personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality). As an initial matter, while the service treatment records are unavailable, there is no indication that the Veteran's claimed disorder involves anything like impairment to the mandible or bone loss in the maxilla or mandible region. Notably, at his hearing before the Board in March 2013, his stated that his symptoms were related only to tooth loss and subsequent infection of other teeth. He has never asserted that there was actual bone loss or other maxillary impairment, nor has any treatment record indicated such impairment. Thus, service connection may not be established for compensation purposes for missing or damaged teeth. Accordingly, the Board finds that entitlement to VA compensation benefits for a dental disorder is not warranted. Next, the Board also considers whether service connection may be established for the purpose of outpatient dental treatment, based on the criteria set forth in 38 C.F.R. § 3.381. See Mays v. Brown, 5 Vet. App. 302 (1993); see also Douglas v. Derwinski, 2 Vet. App. 435, 440 (1992) (en banc) (holding that the Board is required to consider a veteran's claim under all applicable provisions of law and regulation whether or not the claimant specifically raises the applicable provision). Service connection for purposes of outpatient dental treatment may be granted for a dental condition of any tooth and/or and periodontal tissue shown by the evidence to have been incurred in or aggravated by service, so long as the veteran falls under one of a number of specific classifications: * Class I: Those having a service-connected compensable dental disability or condition; * Class II: Those having a service-connected noncompensable dental condition or disability shown to have been in existence at time of discharge or release from active service, which took place after September 30, 1981, with at least 90 days of service during the Persian Gulf War or 180 days of other active service, and who applied for treatment within 180 days after release from active duty, or prior to September 30, 1981 with at least 180 days of service and who applied for treatment within a year of release from active duty; * Class II(a): Those having a service-connected noncompensable dental condition or disability adjudicated as resulting from combat wounds or service trauma; * Class II(b): Homeless and other enrolled veterans eligible for a one-time course of dental care under 38 U.S.C. 2062; * Class II(c): Those who were prisoners of war, as determined by the concerned military service department; * Class III: Those having a dental condition professionally determined to be aggravating disability from an associated service-connected condition or disability may be authorized dental treatment for only those dental conditions which, in sound professional judgment, are having a direct and material detrimental effect upon the associated basic condition or disability; * Class IV: Those whose service-connected disabilities are rated at 100% by schedular evaluation or who are entitled to the 100% rate by reason of individual unemployability; and * Class V: Those participating in a rehabilitation program under 38 U.S.C. chapter 31, and dental services as are professionally determined necessary for any of the reasons enumerated in § 17.47(g). See 38 U.S.C.A. § 1712; 38 C.F.R. § 17.161 (2012). In this case, although the Veteran's service treatment records are unavailable, the Board is able to determine that service connection for purposes of outpatient dental treatment is not warranted, because he cannot be categorized under any of the specific classes listed in 38 C.F.R. § 17.161. First, as discussed above, the Veteran does not have a dental condition or disability that may be service connected to either a compensable or noncompensable level. Moreover, the claim on appeal is the first time he has submitted a claim for dental benefits, and is decades later than the requisite time limits to submit such a claim. As such, he is not able to be categorized under either Class I or Class II. Next, the Veteran also cannot be classified under Class II(a) since, in addition to not having a service-connected noncompensable condition, the evidence does not indicate that he lost the teeth in question due to dental trauma. Specifically, the Veteran has affirmed on a number of occasions that his front upper teeth were not removed as a result of trauma, but were instead removed by a dentist. Moreover, there is no other evidence of record to suggest that the removal of these teeth were due to trauma. In this regard, the Board recognizes the Veteran's essential assertion that his abscess and tooth removal were related to active duty. However, VA regulations are very specific that disorders such as treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses and periodontal disease are not compensable disabilities. 38 C.F.R. § 3.381(b) (2012). Finally, the evidence does not indicate that the Veteran is eligible for any other class. Specifically, there is no indication that he was a prisoner of war (POW), precluding entitlement to Class II(b) and Class II(c) treatment. There is also no indication in the record that he has a dental condition that impairs or aggravates a service-connected condition, and his overall service-connected disability rating is not 100 percent. Moreover, he is not a Chapter 31 vocational rehabilitation trainee, nor is he receiving or due to receive VA care and treatment under Chapter 17. In summary, there is no basis to grant service connection for a dental disorder for VA compensation or outpatient treatment purposes as a matter of law. The Board is sympathetic to the Veteran's arguments but, unfortunately, is unable to provide a legal remedy. See Kelly v. Derwinski, 3 Vet. App. 171, 172 (1992) ("This Court must interpret the law as it exists, and cannot 'extend . . . benefits out of sympathy for a particular [claimant].'"). Since the Veteran's claim fails because of absence of legal merit or lack of entitlement under the law, the claim must be denied. ORDER Service connection for a dental disorder, characterized as the loss of his two front upper teeth (teeth #s 8 and 9), for compensation and/or treatment purposes, is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs