Citation Nr: 1318127 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 04-32 255 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for the removal of teeth, secondary to service-connected bilateral hip disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Bruce, Counsel INTRODUCTION The Veteran had active service from October 1965 to February 1970, with additional service in the Naval Reserve. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of August 2003 by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. A hearing before the undersigned Acting Veterans Law Judge was held at the RO in December 2007 (i.e. a video hearing). The hearing transcript has been associated with the claims file. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The issue of total disability rating based on individual unemployability (TDIU) 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. FINDING OF FACT The Veteran does not have a dental disorder for which compensation can be authorized. CONCLUSION OF LAW The criteria for establishing service connection for a dental disorder for compensation purposes have not been met. 38 U.S.C.A. §§ 1110, 1131, 1712, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.381, 4.150, 17.161, Diagnostic Codes 9900-9916 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must (1) notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, (2) which information and evidence VA will obtain, (3) and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002). See also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). After careful review of the claims file, the Board finds that the letters dated in April 2003, April 2008, and October 2011 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this regard, these letters advised the Veteran what information and evidence was needed to substantiate the claim decided herein. These letters also requested that the Veteran provide enough information for the RO to request records from any sources of information and evidence identified by the Veteran, as well as what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. In Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The April 2008 letter provided this notice to the Veteran. The Board observes that the April 2003 letter was sent to the Veteran prior to the August 2003 rating decision. The VCAA notice with respect to the elements addressed in this letter was therefore timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VCAA notice in accordance with Dingess however, was sent after the initial adjudication of the Veteran's claims. Nevertheless, the Board finds this error nonprejudicial to the Veteran. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). In this regard, the notice provided in the April 2008 letter fully complied with the requirements of 38 U.S.C.A. § 5103(a) (2009), 38 C.F.R. § 3.159(b) (2012), and Dingess, supra, and after the notice was provided the case was readjudicated and a December 2009 supplemental statement of the case was provided to the Veteran. See Pelegrini II, supra; Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (a (supplemental) statement of the case that complies with all applicable due process and notification requirements constitutes a readjudication decision). Therefore the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. The Board finds that VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claims and providing a VA examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4)(i) (2012). In this regard, the Veteran's service treatment records and VA treatment records are associated with the claims folder. In April 2008, March 2010, and September 2011, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development. A remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the April 2008 and March 2010 remands were issued in order for the RO to send proper VCAA notice and develop the Veteran's claim for a bilateral hip disorder; the dental issue was remanded because it was intertwined with the hip disorder. The September 2011 remand was issued to obtain medical treatment records regarding the Veteran's teeth removal and to afford the Veteran a dental examination. The requested development having been achieved, the issue now returns to the Board for appellate review. The Board recognizes a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability, (2) an in- service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4)(i) (2012); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran was scheduled for an examination in December 2012, however, the Veteran failed to report to the scheduled examination. The Compensation and Pension Examination Inquiry reports reflect that a request for a VA examination in connection to the Veteran's claim was cancelled in December 2012 because the Veteran failed to report. Notifications as to the time, date and location of this examination were sent to his most recent address of record in October 2012. The Secretary has the authority to schedule a Veteran for an examination for confirmation purposes. Kowalski v. Nicholson, 19 Vet. App. 171, 178 (2005). Further, the duty to assist is not a one-way street. If a Veteran wishes help in developing his claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). VA regulations provide that individuals for whom an examination has been scheduled are required to report for the examination. 38 C.F.R. § 3.326(a) (2012). When, as here, entitlement to a VA benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant without good cause fails to report for the examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. 38 C.F.R. § 3.655 (2012). At this time, the Veteran has not presented any evidence of good cause as to why he failed to report for his scheduled examination. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Under the circumstances of this case, "the record has been fully developed," and "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Furthermore, as discussed above, the Board finds that there has been substantial compliance with its April 2008, March 2010, and September 2011 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations and the record is ready for appellate review. Analysis In this case, the Veteran seeks service connection for a dental disorder, which he asserts is secondary to his service-connected bilateral hip disorder. He has not advanced another theory of entitlement to service connection, nor has one been reasonably raised by the record. See Robinson v. Shinseki, 557 F.3d 1355(2009) (holding that claims which have no support in the record need not be considered by the Board, because the Board is not obligated to consider "all possible" substantive theories of recovery, and that where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory). Indeed the Board notes the Veteran's January 2003 claim statement in which he stated that he had to have all of his teeth removed at the request of the surgeon prior to surgery for a hip replacement. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may be granted for any disease initially diagnosed after 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) (2012). Service connection may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a); see Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). An increase in severity of a nonservice-connected disorder that is proximately due to or the result of a service-connected disability, and not due to the natural progress of the nonservice-connected condition, will be service connected. Aggravation will be established by determining the baseline level of severity of the nonservice-connected condition and deducting that baseline level, as well as any increase due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). During the pendency of this claim and appeal, an amendment was made to the provisions of 38 C.F.R. § 3.310. See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a nonservice-connected disability by a service-connected one is judged. Although VA indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen, supra, it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the nonservice-connected disability before an award of secondary service connection may be made. This had not been the previous practice, which suggests that the recent change amounts to a substantive change. The present case appears to predate the regulatory change. Consequently, the Board will apply the prior version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made. Lay evidence is competent to establish observable symptomatology and in Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that whether lay evidence is competent and sufficient in a particular case is an issue of fact and that lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2012). As noted above, the Veteran asserts that he has a dental disorder due to complications associated with surgery for his service-connected bilateral hip disorder. The Veteran, as a lay person, is competent to report any observable manifestations of a dental disorder that may be present. See Layno, supra. However, the Board finds that the Veteran is not shown to have a dental disorder causally related to, or aggravated by, his bilateral hip disorder for which VA compensation is authorized. Dental disorders are treated differently than other medical disorders in the VA benefits system. See 38 C.F.R. § 3.381 (2012). As provided by VA regulations, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not considered disabling conditions, but may be considered service connected solely for establishing eligibility for VA outpatient dental treatment. 38 C.F.R. § 3.381(a) (2012). Service connection may be granted for a dental condition of each tooth and periodontal tissue shown by the evidence to have been incurred in or aggravated by service. When applicable, a determination will be made as to whether it is due to a combat wound or other service trauma, or whether the Veteran was interned as a prisoner of war (POW). 38 C.F.R. § 3.381(b) (2012). The significance of finding that a dental condition is due to service trauma is that a Veteran will be eligible for VA dental treatment for the condition, without the usual restrictions of timely application and one-time treatment. 38 C.F.R. § 17.161(c) (2012). Veterans having a service-connected noncompensable dental condition determined to be the result of combat wounds or other service trauma will be eligible for VA dental care on a Class II(a) basis. 38 U.S.C.A. § 1712(b)(1)(C) (West 2002); 38 C.F.R. § 17.161(c) (2012). Trauma, as defined for purposes of dental treatment eligibility, connotes damage caused by the application of sudden, external force, brought to bear outside a clinical setting sustained a sudden trauma. For these purposes, the term "service trauma" does not include the intended effects of therapy or restorative dental care and treatment provided during a Veteran's military service. 38 C.F.R. § 3.306(b)(1) (2012); VAOPGCPREC 5-97. In this case, the medical evidence of record does not show and the Veteran does not contend that the Veteran's dental condition is a result of dental trauma in service, and as noted above, the record indicates that the Veteran is receiving Class III VA dental treatment. The dental conditions for which service-connected compensation benefits are available are set forth under 38 C.F.R. § 4.150, Diagnostic Codes (DCs) 9900-9916. DC 9900 contemplates chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible. DCs 9901 and 9902 address loss of the mandible. DCs 9903 and 9904 concern nonunion and malunion of the mandible, respectively. DC 9905 addresses temporomandibular articulation and limited jaw motion. DCs 9906 and 9907 contemplate loss of the ramus, and DCs 9908 and 9909 address loss of the condyloid process. DCs 9911 and 9912 concern loss of the hard palate. Loss of teeth due to loss of substance of the body of the maxilla or mandible without loss of continuity is contemplated under DC 9913, and loss of the maxilla is addressed under DCs 9914 and 9915. DC 9916 concerns malunion or nonunion of the maxilla. See 38 U.S.C.A. § 1712 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.381 , 17.161 (2012). As relevant to this case, Diagnostic Code 9913 (2012) establishes a disability evaluation for tooth loss due to loss of substance of the body of the maxilla or mandible without loss of continuity. Where the lost masticatory surface cannot be restored by a suitable prosthesis, a maximum 40 percent disability rating is warranted for the loss of all teeth, a 30 percent rating for the loss of all upper teeth or all lower teeth, a 20 percent rating for the loss of all upper and lower posterior or upper and lower anterior teeth, a 10 percent rating for the loss of all upper anterior or lower anterior teeth, or a 10 percent rating for the loss of all upper and lower teeth on one side. A noncompensable rating is assigned where the loss of masticatory surface can be restored by suitable prosthesis. As noted, these ratings apply to bone loss through trauma or disease, such as osteomyelitis, and not to the loss of the alveolar process as a result of periodontal disease. 38 C.F.R. § 4.150 (2012). Thus, compensation is available for loss of teeth only if such is due to substance loss of the body of the maxilla or mandible due to trauma or disease such as osteomyelitis, but not due to periodontal disease. In connection with the present claim, as previously stated, the Veteran contends that he had his teeth removed at the request of the surgeon prior to total hip arthroplasty. Additionally, the Veteran stated at his June 2007 RO hearing that his teeth had to be removed prior to his third hip surgery because they were secreting poison. See RO hearing transcript p. 6. The Veteran further stated at his December 2007 video hearing before the Board that before his third hip replacement surgery, the surgeon insisted that the Veteran's teeth be removed. See June 2007 Video Hearing Transcript, p. 25. VA treatment records demonstrated that the Veteran did indeed have his teeth removed on August 24, 1989. A treatment record associated with the removal of the Veteran's teeth noted that complete removal of the teeth was secondary to dental caries. VA treatment records further indicated that the Veteran had revision of right total hip arthroplasty on September 15, 1989. The operative report associated with the surgical process did not mention anything with regard to the Veteran's teeth. An October 1989 VA treatment record indicated that the Veteran had mandibular and maxillary exostosis and it was proposed that the Veteran have a maxillary and mandibular alveoloplasty. An alveoloplasty is a surgical alteration of the shape and condition of the alveolar process, in preparation for denture construction. There is no indication in any of the VA treatment records that the Veteran's teeth were removed in association with the Veteran's third hip replacement surgery. In this case, the record does not reflect chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, temporomandibular articulation and limited jaw motion, loss of the ramus, condyloid process, or hard palate, or any loss of body of, or malunion or nonunion of, the maxilla or mandible. As noted, missing teeth may be compensable for rating purposes under Diagnostic Code 9913 ("loss of teeth, due to loss of substance of body of maxilla or mandible without loss of continuity"). However, the note immediately following this code states, "these ratings apply only to bone loss through trauma or disease such as osteomyelitis, and not to the loss of the alveolar process as a result of periodontal disease, since such loss is not considered disabling." 38 C.F.R. § 4.150, Diagnostic Code 9913 (2012). Thus, while the record reflects that the Veteran has lost teeth due to dental caries, it does not reflect that any such tooth loss has been due to loss of body substance of the maxilla or mandible due to trauma or disease such as osteomyelitis and not periodontal disease. Thus, even assuming that the Veteran's dental disability is secondary to or aggravated by his bilateral hip disability, under the applicable regulations and diagnostic code, the Veteran does not have a service-connected compensable dental disability based on current examination findings. The Veteran has been diagnosed with a dental disability which is considered a disability for compensation purposes. See 38 C.F.R. § 17.161 (2012). Moreover, the record does not reflect, and the Veteran has not asserted, that any other dental conditions exist for which service-connected compensation benefits are available under 38 C.F.R. § 4.150, DCs 9900-9916. As such, the Veteran does not have a dental disorder for which compensation can be authorized. See 38 U.S.C.A. § 1712 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.381, 17.161 (2012). In reaching this conclusion, the Board has, as above, considered the reasonable-doubt doctrine at 38 U.S.C.A. § 5107(b), 38 C.F.R. § 3.102. However, because the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable herein. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for a dental disorder for VA compensation purposes is denied. ____________________________________________ Robert E. O'Brien Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs