Citation Nr: 1326262 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 10-04 116 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for loss of teeth due to trauma and other dental disorder(s), for purposes of receiving VA compensation and outpatient dental treatment. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran had active service from June 1960 to June 1962. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied entitlement to service connection for the loss of teeth due to facial trauma. The Veteran submitted a Notice of Disagreement in December 2009; a Statement of the Case was issued in January 2010; and a VA Form 9 was submitted later that month. In October 2012, the RO furnished the Veteran a Supplement Statement of the Case, which expanded the dental claim to include for VA outpatient dental treatment purposes and denied the claim for both compensation and treatment purposes. Accordingly, the Board construes the issue as listed on the cover page. The Veteran testified before the undersigned Veterans Law Judge in March 2013 at a Videoconference hearing. A transcript of that proceeding has been associated with the claims file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 The Board finds that additional development is necessary before the claim of service connection for loss of teeth due to trauma and/or other dental disorder(s), for purposes of VA compensation and outpatient dental treatment, can be adjudicated. As an initial matter, the Board observes that 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 as provided in 38 C.F.R. § 17.161. As such, service connection for compensation purposes is not available for a dental condition other than one resulting from dental trauma. The Board notes that, in a precedent opinion, VA's General Counsel held that dental treatment of teeth, even extractions, during service did not constitute dental trauma. See VAOPGCPREC 5-97, 62 Fed. Reg. 15,566 (1997). 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. The Veteran claims that he jumped out a helicopter during a training exercise in-service and sustained trauma to his face and lip ("struck my mouth against my machine gun as we deploying from a helicopter"). See VA Form 9, and Hearing Testimony, generally. He contends that the initial injury to the face/lip resulted in the loss of multiple teeth (4 upper and 4 lower), beginning approximately one year after separation from service. Thus, it appears that the Veteran's claim is one for dental disability or condition due to service trauma, for purposes of receiving VA compensation and outpatient treatment (and each component of the claim has been adjudicated as such by the RO). See Rating Decision, August 2009; Statement of the Case, January 2010; Supplemental Statement of the Case, October 2012. Service treatment records confirm treatment of a "cyst" on the lower lip after hitting his lip against his weapon four weeks prior. Otherwise, service treatment records are silent as to complaints, treatment, or diagnoses of dental trauma or dental disorder(s). Following service, in 2007, the Veteran was treated for a cystic lesion in the anterior maxilla. See University of Texas Health Science Center Treatment Notes. The cyst was noted as being of an "undetermined origin." In a January 2008 private dental note, the Veteran reported that he was going to visit the VA clinic and have a dentist treat him there. To date, the record does not contain any records related to VA dental treatment. In September 2012, the Veteran underwent a VA dental examination. Notably, despite other evidence of record which reflects that the Veteran is missing teeth, wears a partial, has periodontitis and dental caries, and is status post anterior maxilla cyst removal, the VA examination report indicates that the Veteran does not currently have, nor has he ever been diagnosed with a dental condition. Contemporaneous dental x-rays did confirm a left condyle displacement. The examiner opined that the Veteran's claimed dental condition was not incurred in or caused by service. He reasoned that while the Veteran was treated in September 1960 for lip injury, service treatment records made no mention of the teeth. In March 2013, the Veteran testified before the undersigned and again stated that he injured his face and lip during a training exercise when he fell out of a helicopter while wearing over 60 pounds of combat gear. He stated that he was treated later for lip trauma in-service, but that his teeth did not start falling out until approximately one year after service. In April 2013, the Veteran submitted a statement from Dr. K.F., date in March 2013, which indicated that he had treated the Veteran in 2007 for a biopsy of a pre-maxilla cyst of undetermined origin. He noted that the Veteran had reported that his dental problems began with a facial injury he sustained jumping from a helicopter in-service. He stated "possibly the cyst could relate to previous injury to the teeth although there are other explanations as well." He further noted that the Veteran had lost over half of his maxillary and mandibular teeth and that many of the remaining teeth had a hopeless prognosis due to caries, fracture, abscess, and periodontal disease. Lastly, Dr. K.F. stated "if your records show that his dental condition has been in progressive deterioration since his accident in the U.S. Army, then he could be recommended as a candidate for full mouth extraction and full arch rehabilitation with dental implants." Although Dr. K.F.'s records were limited to one, brief treatment, he stated that the Veteran's assertions did not seem "implausible." In sum, Dr. K.F.'s statement is speculative and the VA examiner's objective report is incomplete, with an accompanying opinion that is based solely on lack of in-service dental trauma. In light of this, the Board finds that a new VA Compensation and Pension dental examination with a medical opinion is necessary. When the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991) and Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Ask the Veteran to provide the names, addresses, and approximate dates of treatment of all VA and non-VA that have treated him for any dental condition(s) since his separation from service in 1962. After the Veteran has signed any appropriate releases, obtain and associate with the claims folder all of the Veteran's treatment records. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records, a notation to that effect should be inserted in the file. The Veteran and his representative should be notified of unsuccessful efforts to procure records in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 2. Thereafter, the Veteran should be scheduled for an appropriate VA medical/dental examination(s) to determine the nature and etiology of the Veteran's claimed dental disability and each missing tooth. It is imperative that the claims file be made available to the examiner for review in connection with the examination. Any medically indicated special tests should be accomplished. After reviewing the claims file and examining the Veteran, the examiner should respond to the following: a) Identify all current dental disorders, including but not limited to, each missing tooth; b) State whether it is as least as likely as not (50 percent or greater probability) that the Veteran could have incurred dental trauma in-service after falling out of a helicopter wearing 60 pounds of combat gear and injuring his face/lip with his weapon, resulting in a loss of teeth, and yet not have such an injury/trauma discovered until several years after service? (Note: the Veteran does not claim that his teeth fell out during service, only that the in-service injury/trauma ultimately resulted in the loss of teeth shortly after service); c) If tooth loss due to the aforementioned in-service trauma is found, please identify the tooth or teeth involved by number and describe any non-restorable damage related to the Veteran's dental trauma and explain whether any current maxillary or mandible bone loss is considered to be at least as likely as not (a 50 percent probability or higher) related to the service-connected dental trauma; d) State whether it is as least as likely as not (50 percent or greater probability) that any other current dental disorder (i.e., other than loss of teeth, addressed above), to include the premaxilla cyst of undetermined etiology, status post removal, is the result of the injury to the face/lip incurred during active service. In considering and discussing the pertinent evidence for forming a medical opinion in this case, the examiner(s) must be mindful of the following: (i) service treatment records confirming treatment related to the lip following lower lip after hitting his lip against his weapon four weeks prior; (ii) the Veteran's competent assertions that he sustained injury to the face/lip after falling out of a helicopter during a training exercise and striking his lip/teeth with his weapon, and that his teeth became loose and fell out shortly after his separation from service. (iii) the March 2013 statement from Dr. K.F., D.D.S., noting mandibular and maxillary loss of teeth, periodontal disease, caries, fractures, and abscesses; 2007 treatment for a pre-maxilla cyst; and his statement that the cyst "could" relate to previous injury to teeth. The claims folder and a copy of this remand must be made available and reviewed by the examiner who must provide a complete rationale for all conclusions reached. If the examiner(s) feels that the requested opinions cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Review the claims folder and ensure that all of the foregoing development has been completed in full. If any development is incomplete, appropriate corrective action is to be implemented. If the dental examination reports do not include adequate responses to the opinions requested, it must be returned for corrective action. 38 C.F.R. § 4.2; Ardison v. Brown, 6 Vet. App. 405, 407 (1994). 4. Then, the RO should readjudicate the issue on appeal. If the desired benefit is not granted, a supplemental statement of the case should be furnished to the Veteran and his representative. The case should then be returned to the Board, if otherwise in order. 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). _________________________________________________ DEBORAH W. SINGLETON 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).