Citation Nr: 1319271 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 07-14 006 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a lip and gum disorder, including as due to exposure to herbicides. 2. Entitlement to service connection for residuals of a fracture to tooth #8 with a root canal. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran served on active duty from June 1964 to June 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which in part denied the Veteran's claims for service connection a lip and gum disorder, including as due to exposure to herbicides, and residuals of a fracture to tooth #8 with a root canal. The Board notes that this April 2006 decision indicated that a separate decision for service connection for dental treatment would be addressed by the VAMC in Nashville, and is therefore not part of this appeal. In a January 2011 decision the Board disposed of other issues on appeal and remanded this matter to the RO for further development. Also remanded was a claim for service connection for a psychiatric disorder, variously claimed as a schizophrenic reaction, paranoid type, and posttraumatic stress disorder (PTSD). During the pendency of the remand, service connection for PTSD was granted in an April 2012 rating decision. This grant constitutes a full award of the benefit sought on appeal as to this issue. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). To date, neither the Veteran nor his representative submitted a jurisdiction-conferring notice of disagreement as to the down-stream elements of the rating assigned or effective date. Thus, this issue is not currently in appellate status. Id. This matter is again before the Board for further consideration. The issue of entitlement to service connection for a lip and gum disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Resolving all doubt in the Veteran's favor, residuals of a fracture to tooth #8 had its onset in service as a result of dental trauma. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, residuals of a fracture to tooth #8 had its onset in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.381, 4.150 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran is seeking service connection for residuals of a fracture to tooth #8. The Board concludes that the VCAA does not preclude the Board from adjudicating this portion of the Veteran's claim. This is so because the Board is taking action favorable to the Veteran by granting his service connection claim. See Bernard v. Brown, 4 Vet. App. 384 (1993). In light of the fact the Board allows the benefit sought on appeal, discussion of VA's compliance with the notice and assistance requirements of the VCAA, 38 U.S.C.A. § 5100 et seq. (West 2002 and Supp. 2012), would serve no useful purpose. The Board has reviewed the evidence in the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). Also, the Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Generally, service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b) (2012). Service connection may 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) (2012). In determining whether a dental disability is eligible for service connection, the regulations governing dental claims make a fundamental distinction between "treatable carious teeth, replaceable missing teeth . . . and periodontal disease," and teeth lost as a result of "loss of substance of body of maxilla or mandible" due to trauma or disease such as osteomyelitis, and not loss of the alveolar process as a result of periodontal disease. See 38 C.F.R. §§ 3.381, 4.150, Diagnostic Code 9913, Note (2012); Simington v. West, 11 Vet. App. 41, 44 (1998). Absent a demonstration of dental trauma or disease such as osteomyelitis, service connection for treatable carious teeth, replaceable missing teeth, and periodontal disease may be considered solely for the purpose of establishing eligibility for outpatient dental treatment or entitlement to a dental examination. Id.; see also Woodson v. Brown, 8 Vet. App. 352, 354 (1995). Conversely, teeth lost as a result of "loss of substance of body of maxilla or mandible" due to trauma or disease such as osteomyelitis, and not loss of the alveolar process as a result of periodontal disease may be eligible for service-connected disability compensation. Id. The Board notes that 38 C.F.R. § 3.381, which pertains to service connection for dental disabilities for the purposes of treatment only, was recently revised, effective February 29, 2012. See Dental Conditions, 77 Fed. Reg. 4469 (Jan. 30, 2012). However, the Board is solely addressing the issue of entitlement to service connection for a lip and gum disorder and residuals of a fracture to tooth #8 for the purposes of compensation. Therefore, the provisions of 38 C.F.R. § 3.381 are not applicable as to the issue addressed on appeal. Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status will not always constitute competent medical evidence. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 (West 2002 & Supp. 2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 . The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076 ; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Veteran contends that he has a fracture of tooth number 8 (also referred to as #8) as a result of trauma sustained in service. The Veteran, in his May 2005 claim for the dental/mouth disorders of fractured tooth number 8 and lip and gum disorders, provided a comment about his claimed injury said to have resulted in these disorders. He described having been injured riding a bicycle trying to get away from Vietcong troops who were trying to kill him in a bar downtown. He described how the civilians were all shot and killed and he stole a bicycle to escape but the bicycle collapsed from being fired on and he fell, tearing his upper lip and "busted out" his front upper tooth (presumably tooth number 8). This same accident also was said to have resulted in injuries to his groin and hands that were imbedded with rocks. He described having been picked up by fellow soldiers in a Jeep and treated at a medical facility which stitched his lip and bandaged his hand, and underwent dental surgery on his gums and placement of a temporary tooth the following day. He repeated this same basic story in subsequent statements, including written statements sent to the VA with photographic evidence purported to show him prior to the injury and after the injury with tape completely obscuring his whole mouth. He also related this same story to various medical and mental health providers in describing these injuries. His brother submitted a lay statement in May 2006 attesting to the truthfulness of his claimed injury in Vietnam. The Board notes that during the pendency of this appeal the RO denied service connection for dental trauma in an unappealed decision dated in March 2008. However, as this current appeal is premised on the Veteran having claimed his fracture of tooth #8 resulted from injury in service, the Board shall consider this matter to include dental trauma. Among the evidence pertinent to the matter on appeal was the report of a June 1964 entrance examination which revealed a normal mouth and findings of being dentally acceptable. No findings regarding missing or carious teeth were reported and the accompanying report of medical history revealed he denied severe tooth or gum trouble. An airborne exam from February1965 revealed no findings on tooth number 8, with findings showing teeth numbered 1, 32, 16 and 17 missing and not restorable. Teeth numbered 2, 31, and 18 were deemed restorable. Dental treatment records from service generally showed treatment for various carious teeth other than number 8, until February 17, 1966 when he was treated for a fracture (fx) of tooth number 8. Thereafter he was given a temporary full crown of tooth number 8 (#8) on April 16, 1966 and a few days later on April 13, 1966 underwent a root canal for this tooth. In March 13, 1967, he underwent "PAX" of tooth number 8 and repairs involved "Alginate Impr Max." The cause of the fracture of tooth number 8 that required root canal and placement/repair of crown was not reported in the service treatment records. The April 1967 separation examination revealed his mouth was normal and he was dentally Type 3 and class 1. Notes made no mention of dental injury or problems and the accompanying report of medical history revealed he denied severe tooth or gum trouble. Post service, the Veteran underwent treatment at the VA in 1970 for various medical issues, with a March 1970 dental record showing fair oral hygiene with calculus and dental caries diagnosed. However the soft tissues were normal with no visible oral tissue noted. X-ray showed some findings pertaining to tooth number 8 where he had undergone previous "endo" procedure, but generally his bone support was good. No abnormalities of the head were observed in a March 1970 evaluation for depressive reaction. Private family dental records from February 1994 to June 2001 show routine dental treatment. In April 23, 1998 he had treatment to tooth number 8 with the porcelain jacket crown removed and excavated LI decay. The impression was temporary with temporary bud. On May 26, 1998 a new crown was cemented with cementation of PFM number 18 with advance at number 8, cemented OPC with nexus cement. In January 2007 the Veteran submitted a statement indicating that he was approved for VA surgery in August 2006 by a physician in charge of the dental program in the Nashville, Tennessee VA hospital. VA treatment records include a July 2006 dental oral examination and treatment plan with complaints of trauma to tooth number 8, reimplanted in Vietnam. The tooth had been endodontically treated with conventional root canal, apicoectomy and retrograde fill. The root appeared to be reabsorbing but the shortness could also be due to the apicoectomy procedure. He had low grade chronic pain with the tooth of a 2 on the pain score. He currently was treated with antibiotics by a private doctor. On examination, no oral pathology was noted. He had exceptionally well restored dentition and excellent oral hygiene. The assessment was chronic localized periodontitis. He was referred to the private sector for further treatment. In August 2006 the Veteran underwent private surgery by the Oral Facial Surgery Center. The significant history provided by the Veteran in a preoperative form filled out was of a history of plane crash in 1966 in Vietnam, with no mention made of the bicycle incident. The preoperative diagnosis was apical abscess tooth number 8. He underwent surgical removal of this cyst, with apicoectomy and revision of the retrograde filling of tooth number 8. The pathology report confirmed existence of the apical cyst in tooth number 8, and it was negative for neoplasm. In September 2006 he returned for follow-up status post removal of the cyst in the area of the tooth and was generally doing well. He had a small bony mass in the apex of tooth number 8 which appeared to be residual healing and did not appear to be recurrent infection. Plans were to recheck as needed. Based on the foregoing, when resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for residuals of fracture to tooth #8 is warranted. As noted above, service treatment records document treatment for repair of the fractured tooth number 8. This is consistent with his lay contentions of traumatic fracture to the tooth in service. While there were some inconsistencies in the lay history of tooth injury (most notably in the August 2006 private surgery record that reported a plane crash in service rather than the reported bicycle incident as the cause for his tooth fracture), generally his claimed history of dental trauma is consistent with the findings of fracture to the tooth #8 on dental treatment in service. Additionally, his post service history reflects a history of continued symptoms regarding this tooth treated post service, most recently with the surgery on this same tooth done in August 2006. Thus the Board finds credible lay and medical evidence supporting a finding of inservice dental trauma, with current residuals of the fractured to tooth #8 related to such trauma. Therefore, with resolution of reasonable doubt in the Veteran's favor, the Board concludes that the competent evidence of record establishes that the Veteran's current residuals of fracture to tooth #8 is related to his active military service. 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2012). ORDER Service connection for residuals of a fracture to tooth #8 with a root canal is granted. REMAND The Veteran claims that the injury to tooth #8 also resulted in lip and gum disability. While the report of injury to the tooth, gums and lip is credible, the Board does not find credible evidence of continued symptoms regarding the lips and gums since service. There were no reports of lip or gum disability in service and normal findings on separation examination. The Veteran filed a claim for compensation in 1970, but made no mention of lip or gum disability. If the Veteran had pertinent symptoms that persisted since service it would seem likely he would have mentioned this when he filed his claim for compensation. Given the Veteran's contentions of current disability of the lips and gums, further development is indicated. An etiological opinion has not been obtained for the claimed disorders of the lips and gums. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination 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 appellant'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. Additionally, the Board notes that this issue of entitlement to service connection for a disorder affecting the lips and gums has also been developed by the RO and previously remanded by the Board to include consideration of whether any such disorder is related to Agent Orange exposure. Such exposure is conceded as the Veteran served in Vietnam. Although the Veteran is not shown to have any of the enumerated diseases under 38 C.F.R. § 3.309(e) resulting in any disability of the lips or gums, the United States Court of Appeals for the Federal Circuit has held that a claimant is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Thus the examination should include an opinion as to whether there is any relationship between the Veteran's claimed lip and gum disorder and Agent Orange exposure on a direct basis. Accordingly, the case is REMANDED for the following action: 1. The appellant should undergo a VA dental disorders examination to determine the nature and etiology of any claimed lip and gum disorder. The claims file and a copy of this remand should be made available to the examiner for review. Review of the claims file should be noted in the examination report. All necessary tests and studies, including audiometric examination, should be conducted. For any lip and gum disorder found, the examiner should indicate whether it is as likely as not (50 percent probability or greater) had its onset during active duty or is otherwise related to the appellant's military service. A complete rationale should be included. In this regard, the examiner is asked to comment on the appellant 's service and post-service medical treatment records. For purposes of the examination, the Board finds the appellant is credible that he injured the lips and gums in service. It is not credible that lips and gums have remained symptomatic since service. The examiner should additionally state whether it is as it is as likely as not (50 percent probability or greater) that any lip and/or gum disorder currently shown is related to presumed inservice exposure to Agent Orange. 2. After undertaking any additional development deemed appropriate in addition to that requested above, re-adjudicate the issues remaining on appeal. If any benefit sought on appeal remains denied, provide the appellant and his representative a supplemental statement of the case. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs