Citation Nr: 1317930 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 09-42 597 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for loss of tooth, a draining abscess/fistula, and periodontal pocketing consistent with the root fracture from service trauma for compensation purposes. 2. Entitlement to service connection for loss of tooth, a draining abscess/fistula, and periodontal pocketing consistent with the root fracture from service trauma for VA outpatient dental treatment purposes. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty from March 1968 to April 1972. These matters comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. A hearing was held in January 2013, in Washington, D.C., before Kathleen K. Gallagher, a Veterans Law Judge who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c) (West 2002) and who is rendering the determination in this case. A transcript of the testimony has been associated with Veterans Appeals Control and Locator System (VACOLS) and Virtual VA. The record was held open for a period of 60 days to afford the Veteran an opportunity to submit additional records. In April 2013, the Veteran's representative submitted to the Board additional evidence for consideration in connection with the claim on appeal along with a waiver of RO jurisdiction of such evidence. Thus, the Board accepts this evidence for inclusion in the record on appeal. 38 C.F.R. § 20.1304 (2012). The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder ." The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Reason for Remand: To afford a VA dental examination, to request searches of deck logs, and obtain any additional service dental treatment records. In written statements of record and during his January 2013 Board hearing, the Veteran has asserted that he suffered in-service dental trauma when he was ejected or thrown from his rack during a collision simulation drill on the USS Bang. He indicated that the drill took place during the time frame from October 1971 to April 1972, reporting that he fell on the floor hitting the right side of his face on the deck or his rack. The Veteran testified that he first reported his injury, three loosened teeth and right ear injury, to his corpsman. He indicated that he received aspirin and was instructed to see his family dentist on shore. The Veteran commented that he then went to see the base dentist on two occasions (initial visit with X-rays and a follow-up visit) at the USN Submarine Medical Center New London in Groton, Connecticut. He noted that the dentist found two of his teeth were tightening back up to normal but that his front tooth might be cracked, took X-rays, and told him it was a "wait and see" situation. The Veteran commented that he sought treatment from a private dentist approximately three months after separation. An April 1968 service SUBS examination report showed that tooth #7 was marked as restorable. The Veteran was listed as Type II Class II with qualified pending treatment. Service dental records dated later that month show the Veteran received dental treatment for tooth 7 DS CAV and was then listed as Class I. An April 1969 service radiation physical examination report showed tooth #7 as normal and the Veteran was listed as Type II Class I NCD (not considered disabling). The Veteran's April 1972 service separation physical did not contain any dental findings. Available service treatment and dental records received from the National Personnel Records Center (NPRC) did not contain any additional dental treatment records dated from October 1971 to April 1972 as alleged by the Veteran. In an August 2008 rating decision, the RO found that there was no evidence of dental trauma or chronic dental disability during service and no current evidence of any chronic dental condition related to service. Post-service dental treatment records dated in December 2007 and February 2013 were associated with the record in April 2013. In a February 2013 statement, the Veteran's private treatment provider, W. L. D., DDS, indicated that the Veteran was initially referred to him in December 2007 to evaluate and treat a tooth that had become painful several months previously. It was noted that another treatment provider had noticed a draining fistula or abscess in the area close to the end of the root of tooth #7. After examination revealed deep periodontal pocket suggestive of a root fracture, W. L. D., DDS, performed an apicoectomy, cleaning out the abscess cavity and repairing the tooth. He found that there was a vertical root fracture rendering the tooth hopeless in the long term but not requiring immediate removal. On current examination in February 2013, the treatment provider found that the tooth remained in place with the same problem from December 2007, a draining abscess/fistula and periodontal pocketing consistent with the root fracture. He advised the Veteran to address the tooth in a definitive way before there was more extensive bone loss. He then opined that the upper front tooth should be removed then replaced. The treatment provider noted the Veteran's history of an in-service tooth injury when thrown against his rack. It was noted that no specific treatment was indicated in service and that a root canal/post/crown had already been done on that tooth prior to the incident. After he was given historical information about tooth #7 by the Veteran and conducted an examination, W. L. D., DDS indicated that he did not see any other likely cause of the failure of the tooth than the previously diagnosed root fracture in December 2007. He indicated that there was no way to know how the root fracture came to be and that the root fracture could have been present before the original root canal. The provider noted that the fracture could have been caused by pressures exerted in filling the root canal, the preparation and placement of the post, or functional forces on the tooth after the post was placed inside the root. Finally, he indicated that "you have to be suspicious that the trauma from striking this tooth with such force to loosen it may well have initiated the fracture of the root especially since there was a post within it" at the time of the injury. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Under current legal authority, compensation is only available 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. See 38 C.F.R. § 4.150 (2012). Compensation is available for loss of teeth 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. Id. at Note. 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 and cannot be considered for compensation purposes. 38 U.S.C.A. § 1712 (West 2002); 38 C.F.R. §§ 3.381, 4.150 (2012). The outstanding issue in this case is whether the Veteran currently has a disability that is able to be considered for compensation purposes (i.e., loss of teeth due to loss of substance of body of maxilla, but only if such bone loss is due to trauma). When a detailed report of dental examination is essential for a determination of eligibility for benefits, dental examinations may be authorized for those claimants requiring examination to determine whether the dental disability is service connected. 38 C.F.R. § 17.160 (2012). In this case, there is indication that the Veteran had trauma to the mouth during service and currently has bone loss. In his February 2013 statement, the Veteran's private dentist noted that the Veteran had a draining abscess/fistula and periodontal pocketing consistent with the root fracture. He classified tooth #7 as a predictable failure and advised that it be removed before there was more extensive bone loss. He also identified multiple possible causes for the root fracture, including in-service trauma. However, it is unclear whether the Veteran has suffered actual loss of tooth #7, and if so, was the loss of tooth #7 due to the bone loss. Finally, it also remains unclear whether the bone loss was due to the substance of the body of the maxilla, and if so, whether the bone loss was due to the asserted in-service trauma to the face. Based on the foregoing discussion, the Board finds that a VA dental examination is warranted. McLendon v. Nicholson, 20 Vet. App. 79 (2006). A review of the claims folder suggests that additional service dental records might be outstanding that could assist the Veteran in substantiating his claims. The Veteran has reported receiving dental treatment at the USN Submarine Medical Center New London in Groton, Connecticut, from approximately October 1971 to April 1972. While available service treatment/dental records from NPRC are already of record, it is unclear whether there are additional service dental records that have not yet been obtained. The Veteran and his representative have also repeatedly requested VA's assistance in searching the deck logs of USS Bang from October 1971 to April 1972 in order to corroborate his assertions of an in-service mouth injury during a collision simulation drill. The claims file reflects that the RO had previously contacted the National Archives and Records Administration (NARA) and requested a search of the deck logs of the wrong vessel. There is no evidence that the RO ever provided NARA the proper information for a search for deck logs for the USS Bang as requested by the Veteran. The Veteran is also seeking service connection for loss of tooth, a draining abscess/fistula, and periodontal pocketing consistent with the root fracture for the purpose of establishing entitlement to VA outpatient dental treatment. Legal authority describes various categories of eligibility for VA outpatient dental treatment, to include, inter alia, veterans having a noncompensable service-connected dental condition adjudicated as resulting from a combat wound or other service trauma (Class II(a) eligibility). 38 U.S.C.A. § 1712; 38 C.F.R. § 17.161 (2012). A noncompensable service-connected dental condition includes treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease. 38 C.F.R. § 3.381. The Veteran has argued for treatment for loss of tooth, a draining abscess/fistula, and periodontal pocketing consistent with the root fracture. It remains unclear from the record, however, exactly which untreated, noncompensable dental conditions, to include a missing tooth, resulted from service trauma. As such, the Board finds that a full VA dental examination is warranted, to determine which noncompensable dental conditions directly resulted from in-service trauma. Accordingly, the case is REMANDED for the following actions: 1. The AMC should contact NARA or any other appropriate agency, to include U.S. Army and Joint Services Records Research Center (JSRRC), and request that it search the deck logs of the USS Bang for the time periods from October 1971 to December 1971 and from January 1972 to March 1972 to ascertain whether the Veteran suffered an in-service mouth injury or the ship conducted a collision simulation drill during either of those time periods. A negative response should be requested if no records are available. 2. The AMC should contact the NPRC, or any other appropriate agency, and request that it conduct a search for any of the Veteran's service dental records, generated at the USN Submarine Medical Center New London, in Groton, Connecticut, dated from October 1971 to April 1972, related to any dental condition. A negative response should be requested if no records are available. 3. Notify the Veteran and his representative of the results of the record requests. If records are not received from any source, follow the notification procedures of 38 C.F.R. § 3.159(e). 4. Schedule the Veteran for a dental examination, by a dentist, at a VA medical facility. The entire claims file, to include a complete copy of the REMAND and any pertinent records in Virtual VA, must be made available to the dentist designated to examine the Veteran, and the report of examination should include discussion of the Veteran's documented dental history and assertions. All appropriate tests and studies should be accomplished, including x-rays, and all clinical findings should be reported in detail. The dentist should provide a detailed overview of the Veteran's mouth, to include documenting missing teeth, existing dental restorations, and outstanding issues. After a full examination and review of the claims file, the dentist should offer an opinion, consistent with sound medical judgment, as to the following matters: a. Does the Veteran have bone loss of the substance of the body of the maxilla? (NOTE: the bone loss must be the loss of substance of the body of the maxilla and not the loss of alveolar process as a result of periodontal disease.) b. If so, is it at least as likely as not (i.e., there is a 50 percent or greater probability) that the bone loss was caused by the Veteran's credibly asserted in-service mouth trauma? c. If so, is it at least as likely as not (i.e., there is a 50 percent or greater probability) that any of the Veteran's teeth (specifically tooth #7) were lost because of such bone loss? Please identify which teeth were lost due to this bone loss. d. Is it at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's current dental condition (e.g., loss of tooth #7, a draining abscess/fistula, and periodontal pocketing consistent with the root fracture) resulted from the credibly asserted in-service trauma? If so, please identify (by tooth number or detailed description) what dental conditions resulted from in-service mouth trauma. In rendering the requested opinions, the dentist should specifically consider the in-service treatment records and post-service private treatment records. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). The Veteran is hereby advised that failure to report for any scheduled VA examination without good cause shown may have adverse effects on his claims. 38 C.F.R. § 3.655 (2012). 5. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations--specifically to include consideration of all of the evidence added to the record since the September 2009 statement of the case. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).