Citation Nr: 1319158 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 08-29 479 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for compensation purposes for teeth # 17, 18, 19, 20, 21 and 22. 2. Entitlement to service connection for treatment purposes for teeth # 17, 19, 20, 21 and 22. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to March 1971. This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. When this case was previously before the Board in September 2011, it was remanded for additional development. An August 2012 rating decision established basic eligibility for service connection for dental treatment purposes for tooth #18. The case is now before the Board for final appellate consideration. FINDINGS OF FACT 1. The competent medical, and competent and credible lay, evidence of record does not demonstrate that the Veteran incurred any disability set forth in 38 C.F.R. § 4.150. 2. The competent medical, and competent and credible lay, evidence of record does not demonstrate that the Veteran satisfies any criteria set forth in 38 C.F.R. §§ 3.381 or 17.161 CONCLUSIONS OF LAW 1. The criteria for service connection for compensation purposes for teeth # 17, 18, 19, 20, 21 and 22 have not been met. 38 U.S.C.A. §§ 1110, 1131, 5013, 5103A; 38 C.F.R. §§ 3.159, 4.150 (2012). 2. The criteria for service connection for treatment purposes for teeth # 17, 19, 20, 21 and 22 have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A; 38 C.F.R. §§ 3.381, 4.150, 17.161 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance 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). Notice was provided in an August 2006 letter. Accordingly, the duty to notify has been fulfilled. With regard to the duty to assist, the claim's file contains the Veteran's service treatment records, and VA and private medical records. The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record. A February 2012 VA memorandum provides that 1971 records from the Portland VA Medical Center were unavailable for review, and that the Veteran had been fully advised of this fact. A Board hearing was requested and scheduled in September 2010, and the Veteran requested that his hearing be rescheduled. He did not report for the Board hearing scheduled in December 2010. By a letter dated in December 2010, he stated that he chose not to appear for his scheduled hearing pursuant to the advice of his representative. Thus, VA has been unable to obtain potentially favorable evidence. "The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Legal Analysis With respect to the Veteran's claims, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. The Veteran contends that he had no dental issues prior to active duty. He has submitted statements from his brother and wife in support of this statement. The Veteran asserts that he underwent dental treatment during boot camp that was unnecessary. He contends that either his records had been mixed up with another recruit who did require the treatment, or he was being used as a subject for dental training purposes. The Veteran's service treatment records include the report of a dental examination in October 1967, one week after entrance. He had dental carries at tooth # 19. In August 1968, the Veteran underwent a root canal on tooth 18. The service treatment records are negative for dental treatment or trauma to teeth # 17, 20, 21 or 22. They are also negative for any pathology of tooth # 19 arising more than 180 days after the Veteran's entrance. They provide no evidence that any tooth other than # 18 sustained any dental trauma during service due to a combat wound or other service trauma. 38 C.F.R. § 3.381(b). The Veteran's service treatment records are also negative for complaints, symptoms, findings or diagnoses related to 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, and loss of teeth due to the loss of substance of the body of the maxilla or mandible. The report of the Veteran's separation examination provides that tooth # 18 was absent, and tooth # 19 was restorable. In a June 2006 statement, the Veteran's private treating dentist reviewed the Veteran's dental treatment since August 1985, when the Veteran became his patient. In a November 2010 statement, the dentist stated that the Veteran reported no restorations before active duty. The Veteran stated that he had numerous appointments while on active duty during which very large fillings were placed where, before, no problems were diagnosed. The dentist stated that in his opinion the Veteran's history of very few problems prior to active duty and since active duty, with the exception of left lower molars and pre-molars, if treated conservatively during active duty, could have avoided his present dental situation and status. Service Connection for Compensation Purposes 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, and loss of teeth due to the loss of substance of the body of the maxilla or mandible. In the case of loss of teeth, however, a disability exists only 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, Note to Code 9913. Based on a thorough review of the claims file, the Board finds that the preponderance of the evidence is against entitlement to service connection for compensation purposes for teeth # 17, 18, 19, 20, 21 and 22. The Veteran's service treatment records are simply negative for any dental disability set forth at 38 C.F.R. § 4.150. While the Veteran was missing tooth # 18 at separation, there is no evidence that its absence was due to the loss of substance of the body of the maxilla or mandible as a result of trauma or disease, not periodontal disease. There is no evidence that the Veteran now has any of the disabilities set forth at section 4.150, due to active duty. The November 2010 statement from his private treating dentist does not support his claim. The statement does not show that the Veteran has any of the relevant disabilities set forth at 38 C.F.R. § 4.150. Service Connection for Treatment Purposes Current regulations provide that treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not disabling, and may be considered service connected solely for the purpose of establishing eligibility for VA outpatient dental treatment. 38 C.F.R. § 3.381(a). 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 dental conditions are 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). The significance of finding 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). The following principles apply to dental conditions noted at entry and treated during service: (1) teeth noted as normal at entry will be service connected if they were filled or extracted after 180 days or more of active service; (2) Teeth noted as filled at entry will be service connected if they were extracted or if the existing filling was replaced after 180 days or more of active service; (3) Teeth noted as carious but restorable at entry will not be service connected on the basis that they were filled during service. However, new caries that developed 180 days or more after such a tooth was filled will be service connected; (4) Teeth noted as carious but restorable at entry, whether or not filled, will be service connected if extraction was required after 180 days or more of active service; (5) Teeth noted at entry as nonrestorable will not be service connected regardless of treatment during service; (6) Teeth noted as missing at entry will not be service connected regardless of treatment during service. 38 C.F.R. § 3.381(e). Applicable law and regulations provide that the following will not be service connected for treatment purposes: (1) calculus; (2) acute periodontal disease; (3) 3rd molars, unless disease or pathology of the tooth developed after 180 days or more of active service, or was due to combat or in-service trauma; (4) impacted or malposed teeth, and other developmental defects, unless disease or pathology of these teeth developed after 180 days or more of active service. Teeth extracted because of chronic periodontal disease will be service-connected only if they were extracted after 180 days or more of active service. 38 C.F.R. § 3.381(e). There are various categories of eligibility for VA outpatient dental treatment, including veterans having a compensable service-connected dental condition (Class I eligibility); one-time treatment for veterans having a noncompensable service-connected dental condition (Class II eligibility); those having a noncompensable service-connected dental condition adjudicated as resulting from a combat wound or other service trauma (Class II(a) eligibility); those who were detained as a POW (Class II(b) and Class II(c) eligibility); those who made prior applications for, and received, dental treatment from VA for noncompensable dental conditions but were denied replacement of missing teeth that were lost during any period of service prior to his or her last period of service (Class IIR (Retroactive) eligibility); those having a dental condition professionally determined to be aggravating disability from an associated service-connected condition or disability (Class III eligibility); those whose service-connected disabilities are rated at 100 percent by schedular evaluation or who are entitled to the 100 percent rating by reason of individual unemployability (Class IV eligibility); those who participate in a rehabilitation program under 38 U.S.C. chapter 31 (Class V eligibility); and those who are scheduled for admission or who are otherwise receiving care and services under chapter 17 of 38 U.S.C. (Class VI eligibility). 38 U.S.C.A. § 1712; 38 C.F.R. § 17.161. Based on a thorough review of the claims file, the Board finds that the preponderance of the evidence is against entitlement to service connection for treatment purposes for teeth # 17, 19, 20, 21 and 22. The Board has examined all the classifications of dental disability under 38 C.F.R. §§ 3.381 and 17.161 and has found none that would apply to the Veteran. Turning to section 3.381, the Veteran's service medical records provide no evidence that he sustained dental trauma during service due to a combat wound or other service trauma, or internment as a POW. 38 C.F.R. § 3.381(b). Teeth # 17, 20, 21 and 22 were normal at entrance and underwent no treatment or trauma during active duty. See 3.381(e)(1). Tooth # 19 had carries at entrance, but underwent no additional pathology and was not extracted. See 3.381(e)(3) and (4). Turning to section 17.161, the Veteran does not meet the requirements of class I because, as discussed in detail above, he does not have a service-connected compensable dental condition or disability. The Veteran also fails to establish eligibility for Class II treatment, one-time dental treatment for Veterans having a noncompensable service-connected dental condition or disability in existence at the time of discharge, because a review of the record on appeal shows that he waited until 2006, approximately 35 years after his separation from active duty service in March 1971, to apply for these benefits and such claims must be made within one year after a claimant's separation from active military service. The Veteran does not meet the requirements of class IIa because he does not have a dental condition or disability that is the result of combat wounds or other service trauma. The Board recognizes that the Veteran apparently had tooth # 18 extracted during active duty. However, this does not constitute dental trauma for establishing VA outpatient treatment, as a matter of law. Therapeutic and restorative dental treatment, for example, fillings, bridges, and extractions, almost always involves physical impact of the teeth. The intended effect of dental treatment performed in service, including extractions of teeth, is not considered dental trauma as the term is defined in 38 C.F.R. §§ 3.381 and 17.161. See also 38 U.S.C.A. § 7104(c) (West 2002); Smith v. West, 11 Vet. App. 134 (1998). To have had dental extractions during service is not tantamount to dental trauma, because trauma of teeth, even extractions, in and of itself, does not constitute dental trauma. VAOPGCPREC 5-97, 62 Fed. Reg. 15,566 (1997). Therefore, the Board finds the Veteran did not experience dental trauma during military service. See 38 C.F.R. §§ 3.381 and 17.161. Furthermore, the Veteran fails to establish eligibility for Class II(b), II(c), IIR, because he does not claim and the record does not show that he was ever a prisoner of war or that he filed a claim for dental treatment prior to the current July 2006 claim. He does not meet the requirements of class III, because he does not have a dental condition or disability that has been medically determined to be aggravating a service-connected condition. The Veteran is not in receipt of a 100 percent disability rating for a service-connected disability. Thus, the Veteran does not meet the requirements of class IV. The Veteran also fails to establish eligibility for Class V and VI treatment, as he does not claim and the record does not show that he participates in a rehabilitation program under 38 U.S.C. Chapter 31 or he is otherwise receiving care and services under 38 U.S.C. Chapter 17. See 38 C.F.R. § 17.161 (a). The November 2010 statement from the Veteran's private treating dentist does not support his claim. The statement does not show that the Veteran satisfies any of the criteria set forth at 38 C.F.R. §§ 3.381 or 17.161. The Veteran's Lay Assertions With respect to each claim, the Board acknowledges the assertions by the Veteran and his witnesses. They are competent to testify as to his observable symptoms during and after active duty. The Board finds that their assertions are credible. The Board is aware that lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). Additionally, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Further, lay 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 n.4 (Fed. Cir. 2007). However, the contentions by the Veteran and his witnesses that he has a dental disability that satisfies the criteria for compensation or treatment do not constitute medical evidence in support of either of his claims. Although lay persons are competent to provide opinions on some medical issues, the specific issue in this case (whether the Veteran has a current dental disability that satisfies any of the criteria set forth above) falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011); Jandreau, supra (lay persons not competent to diagnose cancer). As a result, the assertions by the Veteran and his witnesses cannot constitute competent medical evidence in support of his claims. In sum, the medical evidence demonstrates that the Veteran is not entitled to service connection for compensation purposes for teeth # 17, 18, 19, 20, 21 and 22, or service connection for treatment purposes for teeth # 17, 19, 20, 21 and 22. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). (CONTINUED ON NEXT PAGE) ORDER Service connection for compensation purposes for teeth # 17, 18, 19, 20, 21 and 22 is denied. Service connection for treatment purposes for teeth # 17, 19, 20, 21 and 22 is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs