Citation Nr: 1314677 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 12-18 880 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for combat wounds of the left lower extremity. 2. Entitlement to service connection for loss of four front teeth. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran served on active duty from November 1943 to May 1947. This matter comes to the Board of Veterans' Appeals (Board) from a December 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to service connection for loss of four front teeth and determined that new and material evidence had not been received to reopen the claim of entitlement to service connection for combat wounds of the left lower extremity. A notice of disagreement was filed in April 2012, a statement of the case was issued in June 2012, and a substantive appeal was received in July 2012. In his substantive appeal, the Veteran requested a Board hearing; however, he withdrew this request in a February 2013 submission. The issue of entitlement to service connection for a dental disability for treatment purposes has been raised by the record, but this issue does not appear to have been adjudicated. Therefore, the Board does not have jurisdiction over it, and it is referred to the RO for appropriate action. Specifically, the RO should refer the claim for dental treatment to the appropriate VA Medical Center. Please note that 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). FINDINGS OF FACT 1. In a September 1993 RO decision, the Veteran's petition to reopen a previously denied claim for entitlement to service connection for combat wounds of the left lower extremity was denied. 2. Additional evidence received since the RO's September 1993 decision is new to the record, but does not relate to an unestablished fact necessary to substantiate the merits of the claim, and does not raise a reasonable possibility of substantiating the claim of service connection for combat wounds of the left lower extremity. 3. The Veteran's missing four front teeth are not as a result of trauma in service, nor was he a prisoner of war; the lost teeth are not due to the loss of substance of the body of the maxilla or mandible. CONCLUSIONS OF LAW 1. The September 1993 RO decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 2. New and material evidence has not been received since the RO's September 1993 decision denying the Veteran's petition to reopen his previously denied claim for entitlement to service connection for combat wounds of the left lower extremity, and the claim of service connection for combat wounds of the left lower extremity is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. Dental disability was not incurred in or aggravated by the Veteran's active duty service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 and West Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.381, 4.150 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veteran Claims (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held in part that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on a claim for VA benefits. Kent v. Nicholson, 20 Vet. App. 1 (2006), established additional requirements with respect to the content of VA notice for claims to reopen. The Court held in Kent that the VCAA requires VA to look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence and information would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. The Court further held that the failure to provide notice of what constitutes material evidence in this context would generally be the type of error that has the natural effect of producing prejudice because it would constitute a failure to provide a claimant notice of a key element of what it takes to substantiate a claim to reopen. In September 2011, a VCAA letter was issued to the Veteran with regard to the claims on appeal. This letter predated the December 2011 rating decision. The VCAA letter notified the Veteran of what information and evidence is needed to substantiate his claim to reopen, claims of service connection, the information and evidence that must be submitted by the claimant, the information and evidence that will be obtained by VA, and the information and evidence necessary to establish a disability rating and effective date. The content of this notice letter fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Following the VCAA letter, the claims were adjudicated in the December 2011 rating decision and again in a June 2012 statement of the case. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). The Board also finds that VA has complied with all assistance provisions of VCAA. The evidence of record contains the Veteran's service treatment records, post-service VA medical records, and lay statements of the Veteran. There is no indication that there are any relevant, outstanding records that would support the claims. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3). The Board has not requested a VA examination and opinion with regard to the new and material claim, as with a claim to reopen the statutory duty to assist does not arise if new and material evidence has not been presented to reopen the claim. Anderson v. Brown, 9 Vet. App. 542, 546 (1996). In addition, the Board notes that the RO did not provide a VA examiner to review the claims file for a nexus opinion for the claim for service connection for loss of four front teeth, but such is not required in order to make a final adjudication. McLendon v. Nicholson, 20 Vet. App. 79 (2006), states, that in disability compensation (service connection) claims, VA must provide a medical examination [for a nexus opinion, as applicable] when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. The standards of McLendon are not met with regard to the claim for loss of four front teeth because, as will be discussed in detail below, the evidence does not establish credible evidence that the Veteran suffered "an event, injury or disease in service" with regard to his claimed lost teeth, so it is not necessary to obtain a VA medical opinion with regard to etiology of this claimed disability. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the new and material and service connection claims on appeal. New & Material Evidence The Board notes that regardless of whether the RO determined that new and material evidence was received to reopen the claim or that an entirely new claim was received, the Board is not bound by that determination and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Veteran has had the opportunity to present evidence and argument in support of his appeal. There is no indication that the Board's present review of the claim will result in any prejudice to him. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). In March 1950, the RO denied entitlement to service connection for combat wounds of the left lower extremity. The Veteran did not appeal that decision. He filed a petition to reopen the previously denied claim in March 1993; the RO denied this claim in a rating decision dated in September 1993. Such decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. 38 U.S.C.A. § 5108. See Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). The Veteran's request to reopen his claim of service connection for combat wounds of the left lower extremity was received in May 2011, and the regulation applicable to his appeal defines new and material evidence as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a) (2012). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In March 1993, the Veteran filed a petition to reopen his previously denied claim of service connection for combat wounds of the left lower extremity. He asserted that he received shrapnel wounds to the left lower extremity during combat. Service treatment records are negative for any combat wounds, and his April 1947 separation examination reflects that his skin, musculoskeletal system, neurological system, and feet were clinically evaluated as normal. Post-service treatment records present in the claim file at the time of the last prior final denial in September 1993 do not reflect any complaints of or diagnoses of shrapnel or any other wounds of the left lower extremity. In addition, the Veteran underwent VA examinations in August 1949 and September 1965; those examinations failed to find any problems with or assign any diagnosis of wounds to the left lower extremity. In particular, the August 1949 VA examiner made a specific finding that the Veteran did not experience any "residuals of gunshot wounds or other injuries." Similarly, the September 1965 VA examiner acknowledged that the Veteran complained of having problems with his left leg but diagnosed no neurological complications, only psychiatric problems. In an April 1950 rating decision, the RO found that the Veteran's service records, including his April 1947 separation examination, do not show treatment for any wounds to the left lower extremity, nor do they establish that the Veteran was wounded in combat in any way. The Veteran did not file a notice of disagreement; thus, the April 1950 RO decision is final. 38 U.S.C.A. § 7105. Similarly, the Veteran did not file a notice of disagreement with the RO's September 1993 denial of his petition to reopen the previously denied claim for service connection for combat wounds of the left lower extremity; thus, that decision became final. Id. In May 2011, the Veteran filed a claim to reopen entitlement to service connection for combat wounds of the left lower extremity. He asserted that he sustained shrapnel wounds during a bomb explosion while he was stationed in Germany in January 1945, causing him to be hospitalized for a lengthy period. The Board notes that lay assertions regarding the etiology of a claimed disability can suffice to reopen a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In Shade, the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." The Court further held that it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would "force the veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA." However, in this case the Veteran's lay statements and testimony are cumulative and redundant of the statements already of record. In support of his original claim of service connection, the Veteran asserted that he incurred combat wounds to the left lower extremity during a bomb explosion in Germany in January 1945. Similarly, in support of his current claim to reopen, he asserts that he incurred combat wounds to the left lower extremity during a bomb explosion in Germany in January 1945. The Board finds that these assertions were already contained in the May 1949 claim and addressed in the April 1950 rating decision denying the claim. Again, such statements are essentially cumulative and redundant of the previous lay statements of the Veteran-that he incurred combat wounds to his left lower extremity during service due to a bomb blast in Germany in January 1945-that were already of record at the time of the September 1993 RO decision. In the April 1950 RO decision, these assertions were outweighed by the lack of any combat injury documented in service treatment records or at the Veteran's separation examination. The "new" statements simply continue to reiterate the assertion that the Veteran sustained combat wounds to the left lower extremity during a bomb explosion in Germany in 1945; this, despite the fact that service treatment records do not support such assertion. The Board acknowledges that there are voluminous post-service VA treatment records associated with the claims folder. The additional records, however, do not provide an unestablished fact necessary to substantiate the claim, nor do they raise a reasonable possibility of substantiating the claim. In that connection, the Board points out that the records do not document a single instance of a complaint of or diagnosis of a wound to the left lower extremity. The new evidence received in support of the claim to reopen, to include lay statements and VA outpatient treatment records, does not show that the Veteran currently experiences any disability of the left lower extremity related to combat or shrapnel wounds. There has been no competent evidence of record linking the Veteran's claimed left lower extremity disability to shrapnel wounds incurred in service. Further, there is no evidence in the record to substantiate the Veteran's claim that he has any disability of the left lower extremity. The Veteran has not submitted any evidence to that effect beyond his own statements, which, as discussed above, are cumulative and redundant of the evidence previously of record. What is necessary to reopen the Veteran's claim of service connection is evidence establishing that he incurred the claimed disability in service. Should the Veteran obtain such evidence in the future, he may submit such evidence and request that his claim be reopened. In summary, and for the reasons and bases set forth above, the Board finds that the evidence received in conjunction with the claim to reopen entitlement to service connection for combat wounds of the left lower extremity is not new and material, and does not serve to reopen the claim of service connection. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156(a). Having found that the evidence is not new and material, no further adjudication of the claim is warranted. See Kehoskie v. Derwinski, 2 Vet. App. 31 (1991). Because the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen his finally disallowed claim, the benefit-of-the-doubt doctrine is inapplicable. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Service Connection Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in 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 occurred 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). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Disability compensation and VA outpatient dental treatment 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, limited temporomandibular motion, loss of the ramus, loss of the condyloid or coronoid processes, loss of the hard palate, loss of teeth due to the loss of substance of the body of the maxilla or mandible and where the lost masticatory surface cannot be restored by suitable prosthesis, when the bone loss is a result of trauma or disease but not the result of periodontal disease. 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. 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 as provided in § 17.161 of this chapter, but not for purposes of compensation. See 38 C.F.R. § 3.381(a). The Veteran claims entitlement to service connection for loss of his four front teeth, asserting that he sustained trauma to the teeth during a bomb explosion in Germany while he was stationed there in January 1945. In support of his claim, he has submitted pictures of himself purporting to show the lack of front teeth following the alleged explosion. In multiple statements to VA, the Veteran testified that while he was stationed in Germany, his four front teeth were knocked out during an explosion in January 1945 that left him hospitalized. Service treatment records dated in January 1945 reflect that he had a left front tooth extracted while he was hospitalized for bronchitis in a French hospital, but there is no record in the file that the extraction was due to any trauma he experienced during service, nor does the evidence suggest that the Veteran experienced any injuries whatsoever as the result of a bomb explosion while stationed in Germany in 1945. Further, there is no evidence of record that the tooth extraction was necessitated due to loss of body of the mandible or maxilla. In this case, although the Veteran may have undergone dental treatment in service, to include extractions and other periodontal treatment, such treatment is routine in nature. Although service connection may be established for treatment purposes for these conditions, the regulations listed above clearly prohibit service connection for purposes of compensation where the disability involves replaceable missing teeth. 38 C.F.R. § 3.381. As this condition is not recognized by the applicable regulations as a disability for which VA compensation may be granted, the Veteran's claim is not warranted. See 38 C.F.R. § 3.381 (replaceable missing teeth are not a disability for compensation purposes). Despite the Veteran characterizing his dental problems as having had his teeth "knocked out" during an explosion in 1945 that left him hospitalized, it appears that he simply underwent routine dental work while hospitalized for bronchitis. His dental problems were not due to any in-service trauma, nor due to combat. His statements regarding injury due to a bomb blast in service are simply not credible. Additionally, there is no evidence that the Veteran was a prisoner of war. See 38 C.F.R. § 3.381(b). The only dental treatment rendered during the Veteran's term of service was for carious teeth and missing teeth. Service connection for missing teeth for compensation purposes is not legally permitted, and to that extent, as a matter of law this claim must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). As noted, there is simply no evidence of record, other than the Veteran's statements, to substantiate his claim that he lost his four front teeth during a bomb explosion in 1945 that left him hospitalized. To the contrary, as discussed above, the Veteran's 1945 hospitalizations were due to bronchitis and respiratory problems, not to any trauma or lost teeth. The Veteran's in-service records of dental treatment reflect that there is simply evidence of any in-service dental trauma that resulted in residuals, additional loss of teeth, malunion or nonunion of the maxilla, or loss of body of the maxilla or mandible. See generally VAOPGCPREC 5-97; 38 C.F.R. § 4.150, Diagnostic Codes 9913-9916. Consequently, there is no basis for entitlement to service connection for loss of four front teeth for compensation purposes. ORDER New and material evidence has not been received to reopen the claim of service connection for combat wounds of the left lower extremity, and the claim is denied. Entitlement to service connection for loss of four front teeth is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs