Citation Nr: 1329850 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 11-02 696 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUES 1. Entitlement to service connection for a noncompensable dental condition due to dental trauma for the purpose of obtaining VA outpatient dental treatment. 2. Entitlement to service connection for a compensable dental disability due to dental trauma. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The Veteran had active service from December 1964 to December 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction, Vermont. In consideration of the Veteran's contentions, the issues have been recharacterized as stated above. 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 Veteran contends that in service he had a number of teeth unnecessarily extracted, and that during one such extraction, a dental tool broke off in his maxilla, and that a dental tool fragment has remained there since. Specifically, he contends that he received in-service dental treatment at boot camp in Great Lakes, Illinois and on the U.S.S. Chandelieur in Philadelphia, Pennsylvania. Current private treatment records show that teeth numbers 1, 3, 14, 16, 18, 19, 20, 29, and 31 have been extracted, and that a dental tool fragment remains in the left maxillary sinus. The Veteran has submitted a statement from Elaine Clarke, who states that prior to service the appellant had a number of cavities that he expected to get filled while in service. A statement from an individual identifying himself as the Veteran's Division Officer on the U.S.S. Chandelieur in Philadelphia's Reserve Fleet, indicated that in 1965 the appellant had teeth pulled at the Philadelphia Naval Shipyard, that a part of a dental instrument was left in his jawbone such that the claimant was temporarily unable to work, and was sedated while aboard ship with a fully exposed sinus canal. While on remand, the Veteran should be provided a letter that discusses the various classes of eligibility for VA outpatient dental treatment listed under 38 C.F.R. § 17.161. Further, the statement of the case issued by the RO is inadequate. VA regulations provide that a statement of the case or supplemental statement of the case must be complete enough to allow the Veteran to present his argument before the Board and must contain a summary of the applicable laws and regulations, with appropriate citations, and a discussion of how such laws and regulations affect the determination. 38 U.S.C.A. § 7105(d) (West 2002); 38 C.F.R. § 19.29 (2012). The December 2010 statement of the case did not include a citation and discussion of the relevant regulations for VA outpatient dental treatment- 38 C.F.R. § 17.161, nor a citation and discussion of the relevant regulation for a compensable VA dental disability-38 C.F.R. § 4.150. The Board cannot consider whether the Veteran meets the requirements for the various classes of eligibility for VA outpatient dental treatment listed under 38 C.F.R. §17.161, or whether he meets the requirement for a compensable dental disability under 38 C.F.R. § 4.150, without prior consideration by the RO, as this would be prejudicial to the Veteran. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Generally, service trauma is defined as an injury or wound produced by an external physical force during a service member's performance of military duties. See Nielson v. Shinseki, 607 F.3d 802 (Fed. Cir. 2010). The term dental trauma does not include, for example, the intended effects of treatment by VA. See VAOPGCPREC 5-97. The United States Court of Appeals for the Federal Circuit has held that dental trauma does not include intended results of proper medical treatment provided by the military. See Nielson, 607 F.3d at 808. An unintended result of medical treatment due to military negligence or malpractice could, however, be "service trauma" pursuant to 38 U.S.C.A. § 1712(a)(1)(C). Id. Unlike claims for outpatient treatment purposes, claims for compensable service connection include a requirement that the trauma resulted in some loss of body of the maxilla or mandible. 38 C.F.R. § 4.150. It is unclear whether the retention of the foreign object in the Veteran's maxilla has resulted in some loss of body of the maxilla. When a detailed report of dental examination is essential for a determination of eligibility for VA benefits, a VA dental examination may be authorized to determine whether the Veteran has a service-connected compensable dental disability or noncompensable dental condition. See 38 C.F.R. § 3.160(a). The significance of finding that a noncompensable dental condition (such as treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease) is due to in-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. See 38 C.F.R. § 17.161(c) (referred to as "Class II(a)" eligibility). Thus, a VA dental examination is warranted in the present case to make these important determinations. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must send the Veteran a VCAA notice letter in connection with his service connection claim for a noncompensable dental condition for the purpose of obtaining VA outpatient dental treatment under 38 C.F.R. § 17.161. See generally 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159. This letter should discuss the various classes of eligibility for VA outpatient dental treatment listed under 38 C.F.R. § 17.161. The letter should (1) inform him of the information and evidence that is necessary to substantiate the claim; (2) inform him about the information and evidence that VA will seek to provide; and, (3) inform him about the information and evidence he is expected to provide. 2. The RO/AMC must directly contact the dental clinics at the Great Lakes Naval Training Center, and Naval Branch in Philadelphia, in an attempt to secure any missing dental records for the Veteran stored at those facilities dated from 1964 and 1965. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 3. After securing the above records, and any other additional evidence, the RO/AMC must schedule the Veteran for a VA dental examination by a dental surgeon to determine the etiology of any current dental disability or condition. The examination should include any diagnostic testing or evaluation deemed necessary, including laboratory tests. The Veteran must be interviewed. A clear rationale for all opinions is required. The dental surgeon must respond to the following: (a) Does the Veteran have loss of any teeth due to loss of substance of the body of the maxilla or mandible? If so, the examiner must also address whether there is any lost masticatory surface for any tooth, and indicate whether it is restorable by suitable prosthesis. (b) Does the Veteran have nonunion or malunion of the mandible, loss of whole or part of the ramus, loss of the condyloid process, loss of any part of the hard palate, or limited jaw motion? (c) If the Veteran has any of the above dental disabilities, please state whether it is "at least as likely as not" (meaning 50 percent or more probable) that they either began during his military service or as the result of in-service trauma (to include as the unintended result of military treatment due to negligence or malpractice) or as the result of in-service disease such as osteomyelitis? (d) Does the Veteran have dental conditions such as treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, or periodontal disease that resulted from in-service trauma (to include as the unintended result of military treatment due to negligence or malpractice)? (e) What disability, if any, exists from any retained dental tool fragment in the left maxillary sinus? In addressing this question, as well as questions (a) through (d), the dental surgeon must address the April 2010 statement of Glen B. Moyer, D.D.S. (e) The term "at least as likely as not" does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 4. Thereafter, the RO/AMC must consider all of the evidence of record and readjudicate dental service connection issues on appeal. If the benefit sought is not granted, issue a Supplemental Statement of the Case and allow the Veteran and his representative an opportunity to respond. This supplemental statement of the case must include a copy of, and also discuss, the relevant laws and regulations for the various classes of eligibility for VA outpatient dental treatment-38 C.F.R. § 3.381 and 38 C.F.R. § 17.161, as well as the relevant laws and regulations for a compensable VA dental disability-38 C.F.R. § 4.150. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. No action is required of the Veteran until he is otherwise notified. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this 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). _________________________________________________ DEREK R. BROWN 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).