Citation Nr: 1328232	
Decision Date: 09/04/13    Archive Date: 09/10/13

DOCKET NO.  07-16 073	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland


THE ISSUES

1. Entitlement to service connection for loss of teeth, for compensation purposes.

2. Entitlement to service connection for dental disability for treatment purposes.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Cheryl E. Handy, Associate Counsel



INTRODUCTION

The Veteran, who is the appellant, served on active duty from October 1971 to January 1975.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in April 2005 of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland.

This case was previously before the Board in November 2010 and February 2013, when it was remanded for further development.  As the requested development has been completed, no further action to ensure compliance with the remand directive is required.  Stegall v. West, 11 Vet. App. 268 (1998).


FINDINGS OF FACT

1. The Veteran did not incur dental trauma in service; his loss of teeth was not due to loss of substance of body of maxilla or mandible as a result of trauma or disease such as osteomyelitis.

2. The Veteran is not service-connected for any dental disability; he has not previously applied for dental treatment, including within 180 days of separation; he does not have a 100 percent disability rating; he was not a Prisoner of War; he was not participating in a rehabilitation program under 38 U.S.C.A., Chapter 31; and fixing his dental problems was not medically necessary for a medical condition currently under treatment by VA.






CONCLUSIONS OF LAW

1. The criteria for establishing service connection for compensation purposes for dental condition have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.381, 4.150, 17.161 (2013).

2. The criteria for service connection for a dental disability for treatment purposes have not been met. 38 U.S.C.A. §§ 1131, 1712 (West 2002); 38 C.F.R. §§ 3.1, 3.301, 3.381, 4.150, 17.161 (2013). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).

Duty to Notify

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.

VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

Here, the Veteran was sent a letter in July 2004 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal.  A November 2010 letter explained how VA establishes disability ratings and effective dates.  The Board acknowledges that, in the present case, complete notice was not issued prior to the adverse determination on appeal.  However, fully compliant notice was later issued in a November 2010 letter, and the claim was thereafter readjudicated in May 2013.  Accordingly, any timing deficiency has been appropriately cured.  Mayfield, 444 F.3d 1328 (Fed. Cir. 2006).

Duty to Assist

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file.  These files together comprise the claims file.  The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination.  Moreover, his statements in support of the claim are of record.  The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.

In compliance with the Board's February 2013 remand, an addendum opinion to the May 2011 VA dental examination was sought and obtained.  When considered with the May 2011 examination, the February 2013 opinion contained all information needed to rate the disability.  Indeed, the examiner reviewed the objective evidence of record and documented the Veteran's current complaints.  Moreover, the VA examiner performed a thorough clinical evaluation, then offered opinions as to the nature of the claimed disabilities, accompanied by a rationale.  Therefore, this examination is adequate for VA purposes.  Thus VA has complied with the February 2013 remand instructions.  Stegall v. West, 11 Vet. App. 268 (1998).

For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Principles of Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131. 

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service.  This may be accomplished by affirmatively showing inception or aggravation during service.  38 C.F.R. § 3.303(a).

A Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service.  38 U.S.C.A. § 1111.  Only such conditions as are recorded in examination reports are to be considered as noted.  38 C.F.R. § 3.304(b).

Under 38 U.S.C.A. § 1111, the presumption of soundness may be rebutted by clear and unmistakable evidence that a disease or injury existed prior to service and was not aggravated therein.  A pre-existing disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. 

When a condition is properly found to have been preexisting, the presumption of aggravation provides that a preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  38 U.S.C.A. § 1153, 38 C.F.R. § 3.306(a).

Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  All three elements must be established by competent and credible evidence in order that service connection may be granted.

Disability compensation and VA outpatient dental treatment may be provided for certain specified types of service-connected dental disorders.  For other types of service-connected dental disorders, the claimant may receive treatment only and not compensation.  38 U.S.C.A. § 1712; 38 C.F.R. §§ 3.381; 4.150, 17.161.

A claim for service connection for a dental disorder is also a claim for VA outpatient dental treatment.  Mays v. Brown, 5 Vet. App. 302 (1993).  VA outpatient dental treatment is granted to those having a noncompensable service-connected dental condition adjudicated as resulting from a combat wound or other service trauma (Class II(a) eligibility).  38 U.S.C.A. § 1712; 38 C.F.R. § 17.161. There is no time limitation for making application for such treatment.  The significance of establishing service connection for a dental condition, based on service trauma, is that a Veteran will be eligible to receive only treatment indicated as reasonably necessary for the correction of such condition.  38 U.S.C.A. § 1712(a)(1)(C); 38 C.F.R. § 17.161(c). 

With respect to dental disabilities, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease, are not disabling conditions, and may be considered service-connected solely for the purpose of determining entitlement to dental examinations or outpatient dental treatment under the provisions of 38 C.F.R. §§ 3.381, 17.161.  Treatment during service, including extraction of a tooth or placement of prosthesis will not be considered evidence of aggravation of a condition that was noted at entry unless additional pathology developed after 180 days or more of active service.  38 C.F.R. § 3.381(d).  Teeth noted at entry as non-restorable or missing will not be service connected, regardless of treatment during service.  38 C.F.R. § 3.381(e)(5), (6).

The dental disorders for which service-connected compensation benefits are available are set forth under 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916.  Thus, the question is whether service connection for compensation purposes is warranted for any disability found under 38 C.F.R. § 4.150.  Missing teeth are compensable for rating purposes where the loss results from "bone loss through trauma or disease such as osteomyelitis[.]"  38 C.F.R. § 4.150, Diagnostic Code 9913, Note; see also Byrd v. Nicholson, 19 Vet. App. 388 (2005).  However, the note also states that these ratings do not apply to the loss of the alveolar process as a result of periodontal disease, since such loss is not considered disabling.  Id.  

To have had dental extractions during service is not tantamount to dental trauma, because treatment of teeth, even extractions, in and of itself, does not constitute dental trauma.  VAOPGCPREC 5-97, 62 Fed. Reg. 15,566 (1997).

For the purpose of entitlement to VA outpatient dental treatment, various categories of eligibility exist, which consist of 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., where dental care is medically necessary (Class VI eligibility).  38 U.S.C.A. § 1712; 38 C.F.R. § 17.161. 

Those having a service-connected noncompensable dental condition or disability shown to have been in existence at time of discharge or release from active service, which took place before October 1, 1981, may be authorized any treatment indicated as reasonably necessary for the one-time correction of the service-connected noncompensable condition, but only if: (A) They were discharged or released, under conditions other than dishonorable, from a period of active military, naval, or air service of not less than 180 days. (B) Application for treatment is made within one year after such discharge or release. (C) Department of Veterans Affairs dental examination is completed within 14 months after discharge or release, unless delayed through no fault of the veteran.  38 C.F.R. § 17.161(2)(i). 

Evidentiary Standards 

VA must give due consideration to all pertinent medical and lay evidence in a case where a Veteran is seeking service connection.  38 U.S.C.A. § 1154(a).  

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159.

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion.  38 C.F.R. § 3.159.

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  A Veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses.  Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that, 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). 

The Board, as fact finder, must determine the probative value or weight of the admissible evidence.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000) ("Fact-finding in veterans cases is to be done by the Board")). 

When there is an approximate balance of positive and negative admissible evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran.  38 U.S.C.A. § 5107(b). 


Facts

The Veteran seeks VA compensation benefits for four missing front teeth and asserts that they were lost as a result of dental trauma in service.  At present, service connection is in effect for tinea cruris, rated as 10 percent disabling, and for hemorrhoids, rated as 0 percent (noncompensably) disabling.

Service treatment records show that at the time of service entrance in October 1971 (envelope of service treatment records, claims file Vol. 1), the Veteran indicated on his report of medical history, "I was advised to have four teeth removed by my dentist."  Dental records show initial dental treatment in service in November 1971 with an X-ray and a prosthetics consultation.  At the top of that form, the Veteran's four top front teeth have been marked with an "X."

The record shows that in November 2003 (claims file Vol. 2) the Veteran sent a letter to his VA attending physician in which he stated that his front teeth were knocked out during training when he was hit by a grenade.

At a hearing before a Decision Review Officer in October 2006 (claims file Vol. 1), the Veteran described two separate injuries in service, a grenade blast when he was at Fort Dix and a jeep accident when he was in Hawaii in 1972.  He stated that the dental trauma resulting in the loss of four front teeth occurred in the jeep accident.

In the May 2007 Substantive Appeal (VA Form 9) (claims file Vol. 2), the Veteran reported that the loss of his four front teeth occurred when he fell from a jeep during training in Hawaii.

At a subsequent hearing before a Decision Review Officer in July 2009 (claims file Vol. 2) the Veteran again testified that he suffered dental trauma, including loss of maxillary and bone, while stationed at Schofield Barracks in Hawaii.  He stated he was thrown from a jeep and knocked out his front teeth and was treated on an outpatient basis for the injury, with subsequent treatment, including dental implants.  He gave an approximate date of this accident as 1972.

The Veteran was afforded a VA dental examination in May 2011 (claims file Vol. 3).  At that time he reported to the examiner that he was thrown from a jeep during a training accident in Hawaii in 1972, which left his teeth cracked but in place.  A week later the teeth were extracted and he was fitted with a removable partial denture, followed by a fixed bridge which lasted 20 years.  The VA dental examiner noted that the Veteran is missing teeth #6, 7, 8, 9, 10, and 11, but that there was no loss of bone or soft tissue.  The examiner observed that the report of medical history in the Veteran's own handwriting n October 1971 indicated that his dentist had advised him to have four teeth removed.  The first in-service dental treatment note from November 1971 was reviewed, which showed that "teeth #7, 8, 9, and 10 are either missing or x-ed out on the treatment plan form, indicating that they are to be removed.  The record is unclear as to the meaning of this."  The examiner noted that in 1971 the Veteran was fitted with a fixed permanent bridge with abutment teeth #6 and #11.  The service treatment records did not mention a jeep accident, a grenade, or any dental trauma, nor was there a record of tooth extraction.  Based on the review of the claims file, the examiner offered the opinion that it was unlikely that the Veteran lost his teeth as a result of anything in the military, despite the Veteran's own statements to the contrary.

In an addendum opinion provided in May 2013 (claims file Vol. 4), the VA dental examiner offered the opinion that the Veteran's dental disability had clearly and unmistakably pre-existed his service, based on the Veteran's own statement at the time of service entrance that his dentist had advised that he have four teeth extracted and on the first dental record in service a month later showing either extracted or to-be-extracted teeth.  Further, based on the same evidence, the Veteran's dental disability was clearly and unmistakably not aggravated by his service.  In addition, the examiner noted that there was no evidence in the service treatment records of any dental trauma in 1972, only of placement of a fixed bridge replacing the four front teeth in 1971.

Analysis

After reviewing the evidence set forth above, the Board concludes that service connection for loss of teeth for compensation purposes is not warranted.  As stated by the VA dental examiner, there is clear and unmistakable evidence that a dental disability pre-existed the Veteran's entrance into service: he stated at the time of service entrance that he had been advised to have four teeth removed.  Said teeth were either removed or unsalvageable prior to service entrance and the condition was clearly and unmistakably not aggravated by the Veteran's service.  As such, the presumption of soundness has been rebutted.  See Harris v. West, 203 F.3d 1347 (Fed.Cir.2000) (Veteran's own statements about his medical history may be sufficient to rebut the presumption of soundness).

The Board has considered the Veteran's statements regarding the occurrence of dental trauma in service that caused him to loose his teeth.  He is considered competent to provide evidence regarding his own experiences, which would include any dental trauma and loss of teeth.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  In addition to offering conflicting and inconsistent scenarios, namely loss of teeth due to a grenade explosion at Fort Dix, teeth knocked out in a jeep accident in Hawaii, teeth injured in jeep accident in Hawaii and later removed, these statements are inconsistent with the objective evidence of the service treatment records.  As noted, the service treatment records contain no mention of the grenade incident or the jeep accident or any other evidence of the dental trauma alleged by the Veteran.  Instead, they show that his four front teeth were in need of extraction at the time of service entrance and were in fact extracted either prior to service or immediately after service entrance and prosthetics were issued in November 1971.  Therefore, the Veteran's statements are not considered credible and are of limited, if any, probative value compared to the objective evidence of the service treatment records and the opinion of the VA dental examiner.

Finally, the Board notes that the law does not allow for service connection for compensation purposes for missing replaceable teeth or where the teeth were noted to be missing or non-restorable.  38 C.F.R. § 3.381.  Further, only where the loss of teeth was due to the loss of substance of the body of the maxilla or mandible, that is bone loss through trauma or disease, is the loss of teeth considered compensable.  38 C.F.R. § 4.150.  In this instance, teeth #7, 8, 9, and 10 were either missing or non-restorable at the time of service entrance, as indicated by the Veteran's description on the medical history report and the first dental treatment notes in service.  As such, they would not qualify for service connection for compensation purposes.  The Board acknowledges that the Veteran is now also missing teeth #6 and #11; this tooth loss has occurred since service.  He has not specifically indicated whether he included these teeth in his claim of service connection for compensation purposes.  Regardless of the cause for the loss any of the Veteran's teeth, however, where the record shows that there was no bone or soft tissue loss, service connection for compensation purposes is not warranted.

In addition, the Board has determined that service connection for outpatient treatment purposes is not warranted.  The Veteran is not service-connected, compensably or otherwise, for any dental disorder.  Similarly, neither of his service-connected disabilities has been alleged or shown to have been aggravated by his dental disability.  He has not previously applied for dental treatment.  Also, he does not have a disability rating of 100 percent.  Moreover, service records do not indicate, and the Veteran does not contend, that he was a POW.  The Veteran was also not participating in a rehabilitation program under 38 U.S.C.A. Chapter 31, and fixing his dental problems was not medically necessary for a medical condition currently under treatment by VA.  Additionally, the Veteran separated from active service in February 1975, and he did not first apply for treatment until September 2002. 

Finally, the record does not show that the Veteran engaged in combat, nor does the record indicate that the Veteran's loss of his four front teeth was related to any trauma in service.  As noted, the Veteran's statements regarding trauma related to either the grenade incident in training or the jeep accident in Hawaii are in conflict with the contemporaneous objective evidence of his statements at service entrance and his first dental treatment in service.   

For the foregoing reasons, the Board finds that the Veteran does not qualify for service connection for dental disability for outpatient treatment services based on Class I, II II(a), (b), (c), IIR, III, IV, V, or VI eligibility, because he does not satisfy the criteria for any eligibility class under 38 C.F.R. § 17.161.  Accordingly, he is not entitled to dental treatment for his missing teeth.
As the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable.  The Veteran's claim of entitlement to service connection for loss of teeth for compensation purposes must be denied.


ORDER

Entitlement to service connection for loss of teeth, to include for outpatient treatment purposes, is denied.



____________________________________________
Eric S. Leboff
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs