Citation Nr: 1329937 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 04-08 870 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a dental disorder, including residuals of dental trauma, claimed as due to exposure to contaminated water during service. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from September 1945 to December 1946. This case comes to the Board of Veterans' Appeals (Board) on appeal of an August 2001 rating decision of the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA). The case has a long and complicated procedural history that will be briefly summarized. The matter was initially addressed by the Board in an August 2005 decision that denied the benefit. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court), and the Board's decision was vacated pursuant to an August 2006 Order, following a Joint Motion for Remand (JMR). Pursuant to the JMR, the Board remanded the case in March 2007, and then denied the issue in a May 2008 decision. Following motion from the Veteran's counsel, the Board vacated the May 2008 decision in September 2009 and again remanded the issue. The issue was again remanded by the Board in July 2012. The case has been returned to the Board for further consideration, and, unfortunately, due to a change in the law, must again be remanded. 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. VA will notify the appellant if further action is required on his part. REMAND The Veteran contends that he has a dental disability as a result of exposure to contaminated water while serving in Germany following the conclusion of World War II. In its decision, the RO adjudicated the claim as one for a dental disability for purposes of compensation. As noted, the Board must address all issues reasonably raised by a liberal reading of the record; consistent with this principle, a claim for service connection for a dental disability for purposes of compensation must also be considered to be a claim for service connection for a dental disability for purposes of VA outpatient dental treatment. Mays v. Brown, 5 Vet. App. 302, 305-06 (1993). Indeed, the Veteran has contended that the exposure to contaminated water was the equivalent of dental trauma. The Board notes that as to each noncompensable service-connected dental condition, a determination will be made as to whether it was due to combat wounds or other service trauma. 38 C.F.R. § 3.381(b). The significance of finding a dental condition is due to service trauma is that a veteran will be eligible for VA outpatient dental treatment, without being subject to the usual restrictions of a timely application and one-time treatment. 38 C.F.R. § 17.161(c). The regulation relating to service connection of dental conditions for treatment purposes was amended, effective February 29, 2012, in order to clarify existing regulatory provisions and to reflect the respective responsibilities of the Veterans Health Administration (VHA) and Veterans Benefits Administration (VBA) in determinations concerning eligibility for dental treatment. See Proposed Rules, Dental Conditions, 76 Fed. Reg. 14,600 (Mar. 17, 2011); Final Rule, Dental Conditions, 77 Fed. Reg. 4469 (Jan. 30, 2012). The amended version of 38 C.F.R. § 3.381 clarifies that VBA will adjudicate a claim for service connection of a dental condition for treatment purposes after VHA determines that a veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161 and requests that VBA make a determination on relevant questions. 38 C.F.R. § 3.381(a) (2012). In this case, the RO explicitly adjudicated, and denied, the claim for entitlement to service connection for a dental disability for purposes of compensation, but did not explicitly address, or refer, the claim for entitlement to service connection for a dental disability for purposes of VA outpatient treatment purposes. Although the RO did not explicitly adjudicate the claim for service connection for a dental disability for purposes of VA outpatient dental treatment, the Board finds that remand, rather than referral, is appropriate here. A remand with instructions to the RO to refer the claim to the VHA, which the regulation provides must make the initial determination on the claim, will better ensure that the claim is addressed promptly and efficiently and is therefore consistent with the uniquely pro-claimant principles underlying the veterans' benefits system. Nat'l Org. of Veterans Advocates, Inc. v. Sec'y of Veterans Affairs, 710 F.3d 1328, 1330 (Fed. Cir. 2013). It is further noted that the Veteran was discharged from service in 1946. There was a change in VA dental law in 1955 that enacted a one year time limitation for applying for treatment and restricted treatment for non-compensable dental conditions to a one-time completion basis. See Woodson v. Brown, 8 Vet. App. 352, 355 (1995). It is noted that this change in dental law, that existed at the time of the Veteran's discharge from service, has not been applied in this case. The Board observes that Woodson noted that the one-year limit for applying for dental treatment was first imposed by a 1957 statute which became effective on January 1, 1958, and that, since the veteran in Woodson was discharged in 1954, that statute did not apply to him. Id. at 355. The Court further found, however, that although a veteran was not required by statute to apply for outpatient dental treatment within one year of his discharge, he was required to do so by 38 C.F.R. § 17.123 (now codified in 38 C.F.R. § 17.161). Id. Woodson does not hold that a veteran who applies for dental treatment within one year of service discharge prior to 1958 is now entitled to dental treatment based on the law in effect prior to 1958. Rather, Woodson found that if a veteran had not submitted a claim for Class II eligibility, and had submitted no evidence to establish that he applied for outpatient dental treatment within one year of his discharge, he therefore could not possibly meet the requirements of 38 C.F.R. § 17.123(b) as they existed in 1955 or under current law. Id. at 355. Although Woodson indicates that the one-year statutory limit for applying for dental treatment does not apply to veterans discharged before its effective date of January 1, 1958, it does recognize that there is a regulatory limit on applying for dental treatment. As noted in Woodson, the one-year limit for applying for treatment was first imposed by Congress in a series of statutes and amendments that culminated in a final 1957 statute which became effective on January 1, 1958. See Pub. L. No. 85-56, §§ 512, 2301, 71 Stat. 83, 112, 172 (1957). Since the Veteran in this case was discharged in 1946, that statute did not apply to him. However, in December 1955, 38 C.F.R. § 17.123(b) was amended to provide that a veteran seeking Class II eligibility had to apply for treatment "within 1 year after discharge or release, or by December 31, 1954." 38 C.F.R. § 17.123(b) (1956); 20 Fed. Reg. 9505 (1955). At that time, the authority for § 17.123 was Veterans Regulation No. 7(A), Exec. Order No. 6233, a very general provision entitled "eligibility for medical care." It authorized the VA Administrator (now the Secretary), "in his discretion," to furnish medical care to veterans, including "dental services." Ibid. Therefore, although the veteran was not required by statute to apply for outpatient dental treatment by December 1954, he was required to do so by 38 C.F.R. § 17.123; Woodson 8 Vet. App. at 352. Public Law No. 83-149 stated "[t]hat no part of this appropriation shall be available for outpatient dental services and treatment, or related dental appliances with respect to a service-connected dental disability which is not compensable in degree unless such condition or disability is shown to have been in existence at time of discharge and application for treatment is made within one year after enactment of this Act. . . ." (Independent Offices Appropriation Act 1954) (Approved July 27, 1953) Public Law No. 83-428 stated "[t]hat no part of this appropriation shall be available for outpatient dental services and treatment, or related dental appliances with respect to a service-connected dental disability which is not compensable in degree unless such condition or disability is shown to have been in existence at time of discharge and application for treatment is made within one year after discharge or by December 31, 1954, whichever is later. . . ." (Independent Offices Appropriation Act 1955) (Approved June 24, 1954) Therefore, in order to be eligible for current dental treatment the Veteran was required to apply by December 31, 1954 (the later of the dates). This aspect of the Veteran's claim has not been addressed. Accordingly, the claim for entitlement to service connection for a dental disorder, including residuals of dental trauma, as a result of exposure to contaminated water during service, 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. Refer the claim for dental treatment to the appropriate VA Medical Center (VAMC) to determine if the Veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161. 2. If the VAMC determines that the Veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161 and requests VBA make a determination, adjudicate the claim. If any benefit sought on appeal remains denied, furnish the Veteran and his attorney a supplemental statement of the case (SSOC), which should also consider the applicable provisions regarding the changes in the law since 1955 that have been outlined above. The Veteran and his attorney should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further review. 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). _________________________________________________ BARBARA B. COPELAND 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).