Citation Nr: 1325874 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 11-26 029 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a dental disability, to include for outpatient treatment purposes. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran served on active duty from September 2001 to January 2006, and from October 2007 to October 2008. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In this decision the RO denied service connection for a dental condition, to include for dental treatment purposes. As such, the issue has been recharacterized as noted on the title page above. See Mays v. Brown, 5 Vet. App. 302 (1993) (a claim for service connection for a dental disorder is also a claim for VA outpatient dental treatment under 38 C.F.R. § 3.381 (2012)). 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 Service Connection Service connection for compensation purposes can only be established for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla. Compensation is available for loss of teeth only if such is due to loss of substance of body of maxilla or mandible. See Simmington v. West, 11 Vet. App. 41 (1998). For loss of teeth, bone loss through trauma or disease such as to osteomyelitis must be shown for purposes of compensability. The loss of the alveolar process as a result of periodontal disease is not considered disabling. See Note to Diagnostic Code 9913, 38 C.F.R. § 4.150. The Veteran asserts that his current dental condition is a result of dental trauma in service. More specifically, he reports that he had been hit in the face with a crane boom and that this incident damaged his four front teeth. In August 2009, the Veteran was afforded a VA dental examination. The examination report is inadequate for two reasons. First, the report contains some discrepancies. In this regard, the examiner reported that the Veteran was congenitally missing teeth #7 and 10, but went on to conclude that he elected to have tooth #10 periodontally treated and crowned due to esthetics. He also reported that tooth #9 was crowned to look like missing lateral incisor tooth #10, but service treatment records suggest that it was actually tooth #11. Second, although the examiner also reported that tooth #9 had been crowned due to fracture from being hit by a crane boom on active duty, he did not provide any rationale for this opinion, to include why tooth #9 was the only tooth affected despite the Veteran's claim that his four front teeth were affected. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Medical rational is particularly essential in light of the fact that the alleged dental trauma is not shown in the service treatment records. In light of these inadequacies, the Veteran should be afforded a new VA dental examination. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (in terms of VA examinations, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate). In addition, following the issuance of the July 2011 statement of the case, in October 2011, the Board received additional pertinent evidence that was forwarded by the RO. This evidence includes an August 2012 statement from the Veteran explaining in more detail his inservice dental trauma as well as a list of fellow servicemen whom he said witnessed the trauma. Applicable VA regulations require that pertinent evidence submitted by the appellant must be referred to the Agency or Original Jurisdiction (AOJ) for review and preparation of a Supplemental Statement of the Case (SSOC) unless this procedural right is waived by the appellant. 38 C.F.R. §§ 19.37,20.1304 (c) (2012). In this case, the additional evidence was not accompanied by a written waiver of review. Accordingly, this matter must be remanded so that the AOJ can review the additional evidence in the first instance. Id. Outpatient Dental Treatment The Veteran reported on an August 2012 statement that he has no dental insurance or VA dental assistance and still has a lot of unfinished dental work that he attributes to "military error". His service treatment records include a dental health questionnaire that the Veteran and a dental officer signed in September 2008 noting that the Veteran had unsuccessful bonding (broken bonding on multiple occasions in four years) and needed new crowns and more crown lengthening. Effective February 29, 2012, VA amended its adjudication regulations regarding service connection of dental conditions for treatment purposes under 38 C.F.R. § 3.381. The amendments clarify existing regulatory provisions and reflect the respective responsibilities of the Veterans Health Administration (VHA) and the Veterans Benefits Administration (VBA) in making determinations that concern eligibility for dental treatment, including that VBA will adjudicate a claim for service connection of a dental condition for treatment purposes after VHA determines a veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161 and requests VBA make a determination, as to certain listed questions, including whether the veteran has a compensable or noncompensable service-connected dental condition or disability, whether the dental condition or disability is a result of combat wounds, and whether the dental condition or disability is a result of service trauma. See Final Rule, Dental Conditions, 77 Fed. Reg. 4469 (Jan. 30, 2012). The adjudication of the dental treatment issue, however, appears to have been done without consideration of the VBA and VHA policy. See M21-1R, Part III, Subpart v., Chapter 7, Section C, and M21-1R, Part IX, Subpart ii, Chapter 2, Section 2, pertaining to the processing and rating of dental claims; see also VBA Fast Letter 10-42 (Guidance on Rating Dental Conditions), dated in October 2010. These manual provisions and Fast Letter direct that an RO is not to adjudicate a claim for service connection for a dental condition for treatment purposes in the first instance in most cases. Such a claim, instead, is to be referred to a VHA facility for that administration to make a determination of eligibility in the first instance. The VHA facility is also responsible for notifying the Veteran of any decision. There is a specific process to be followed should the VHA facility require assistance from VBA in providing additional information in order to make a decision. In any event, the initial determination is to be made by the VHA facility. In light of this, the Veteran's claim for treatment should be initially referred to the VHA. Accordingly, the case is REMANDED for the following action: 1. Refer the Veteran's dental claim for outpatient treatment purposes to a VHA facility for that administration to make a determination of eligibility in the first instance as outlined in M21-1R, Part III, Subpart v., Chapter 7, Section C, and M21-1R, Part IX, Subpart ii, Chapter 2, Section 2, pertaining to the processing and rating of dental claims; see also VBA Fast Letter 10-42 (Guidance on Rating Dental Conditions), dated in October 2010. 2. Schedule the Veteran for a VA dental examination. The Veteran's claims folder and a copy of this REMAND should be provided to the examiner for review prior to completion of the examination. Moreover, a notation to the effect that this record review took place must be included in the examination report. All indicated studies, tests, and evaluations should be performed. All pertinent symptomatology and findings should be reported in detail. The VA examiner should identify the Veteran's current dental disabilities and should specifically indicate whether the Veteran has loss of teeth due to trauma or disease. The examiner should also render an opinion, based on the entire medical history, as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's currently diagnosed dental disabilities are a result of an incident in service. A clear rationale for all opinions should be included as well as a discussion of the facts and medical principles involved. 3. The RO should then readjudicate the claim on appeal, including reviewing all newly obtained evidence and completing any additional development deemed necessary. If any benefit sought on appeal remains denied, the appellant and the appellant's representative should be provided a SSOC that contains a summary of the evidence and applicable laws and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. The case should then be returned to the Board, if in order, for further review. The appellant and his representative have 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). _________________________________________________ H. N. SCHWARTZ 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).