Citation Nr: 1330946 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 09-50 038 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for loss of teeth for treatment purposes. 2. Entitlement to service connection for loss of teeth for compensation purposes. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from May 1960 to July 1963. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a January 2008 rating decision issued by the Regional Office (RO) in Cleveland, Ohio, that denied service connection for loss of teeth for treatment purposes. In November 2009 the RO also denied service connection for loss of teeth for compensation purposes in a statement of the case (SOC). On the Veteran's VA Form 9, he indicated that he wished to appeal the denial of service connection for both treatment and compensation purposes. FINDINGS OF FACT 1. The Veteran was granted a total disability rating by reason of individual unemployability (TDIU) by rating decision dated December 27, 2010, establishing Class IV eligibility for dental treatment. 2. The Veteran's loss of teeth was not shown to be due to loss of substance of the body of the maxilla or mandible as a result of trauma or disease in service. Loss of teeth was due to periodontal disease. CONCLUSIONS OF LAW 1. Eligibility for dental treatment was established by rating decision dated December 27, 2010 granting TDIU, which had the effect of establishing Class IV eligibility for dental treatment. 38 C.F.R. § 17.161(h). 2. The criteria for service connection for loss of teeth for compensation purposes were not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.381, 4.150, 17.161 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper VCAA notice must inform the claimant of any information and 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. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356. The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In this case, the Veteran was sent a letter in September 2006 which explained how VA could help him obtain evidence in support of his claim. The letter also explained what the evidence needed to show in general to establish service connection for a disability and explained how VA establishes disability ratings and effective dates. The notification letter did not address the specific provisions that are applicable to service connection claims for dental conditions, but in this case the Veteran and his representative showed actual knowledge that a showing of trauma or disease was required in order to establish service connection for loss of teeth. In the May 2013 document entitled "appellant's brief," the Veteran's representative acknowledged that service connection for dental disorders such as loss of teeth is available only when they result from bone loss through in service trauma or disease such as osteomyelitis, and service connection is not available for the loss of the alveolar process as the result of periodontal disease, citing 38 C.F.R. § 4.150, diagnostic code 9913. Furthermore, the Veteran and his representative have consistently maintained throughout this appeal that the Veteran's loss of teeth was the result of an in-service motor vehicle accident in which the Veteran fractured his jaw. Due to the claimant's actual knowledge of the requirements for establishing service connection for a dental condition for compensation purposes, there is no prejudice due to the notice error. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (finding that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim); Mlechick v. Mansfield, 503 F.3d 1340 (Fed. Cir. 2007) (finding that a notice error is non-prejudicial when the claimant has actual knowledge of what is necessary in order to support his claim). Any notice error with respect to the criteria for establishing entitlement to dental treatment is irrelevant since the Veteran is already qualified for dental treatment irrespective of his particular dental condition, and to the extent that he is not already receiving dental treatment, service connection for treatment purposes is granted in this decision. VA also must make reasonable efforts to assist the claimant with obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record evidence including some service treatment records, VA treatment records, and the written contentions of the Veteran. It appears that the Veteran's service treatment records are incomplete and there are no service dental records. However, it appears that the records that are in the claims file are the only service treatment records which are available and there is no indication that other service treatment records exist. The Board acknowledges its heightened obligation to consider carefully the benefit of the doubt rule in cases where the Veteran's service treatment records are unavailable through no fault of the Veteran. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Veteran has also been provided several VA dental examinations in connection with earlier claims and the current claim. These examinations considered the history and dental examination results and included reasoned conclusions which were based upon all of the evidence. Therefore, they are adequate for rating purposes and further examination is unnecessary. The Board finds that no further evidentiary development is indicated in this case. Entitlement to Dental Treatment The Veteran contends that he should be granted service connection for the loss of his teeth for treatment purposes because he believes that such loss was due to a disease or injury in service, including a motor vehicle accident in which he fractured his jaw. However, the relationship between service and the Veteran's current loss of teeth is not relevant to his claim for dental treatment eligibility, because the Veteran is already entitled to outpatient dental treatment. Eligibility for dental treatment was established by rating decision dated December 27, 2010 granting TDIU, which had the effect of establishing Class IV eligibility for dental treatment. 38 C.F.R. § 17.161(h). This regulation provides that Veterans who are rated 100 percent disabled, including Veterans who are granted TDIU, are eligible for VA dental treatment. It is unclear whether the Veteran is already receiving the dental treatment to which he is entitled by virtue of the December 2010 rating decision, but to the extent that he is not currently receiving VA dental treatment, eligibility for dental treatment is granted. Service Connection for Compensation Purposes The Veteran contends that his loss of all of his teeth is the result of a motor vehicle accident that occurred during his service. Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). With regard to dental problems, compensation is available only for the types of dental and oral conditions listed at 38 C.F.R. § 4.150. These include loss of whole or part of the mandible, nonunion or malunion of the mandible, loss of whole or part of the ramus, loss of whole or part of the maxilla, nonunion or malunion of the maxilla, loss of the condyloid or coronoid process, or any part of the hard palate. 38 C.F.R. § 4.150, diagnostic codes 9900-9916. Compensation is available for loss of teeth only if such loss is due to loss of substance of the body of the maxilla or mandible. For loss of the teeth, bone loss through trauma or disease, such as osteomyelitis, must be shown. The loss of the alveolar process as the result of periodontal disease is not considered disabling. 38 C.F.R. § 4.150, diagnostic code 9913. In addition, to be compensable, the lost masticatory surface for any tooth cannot be restorable by prosthesis. To establish a right to compensation for a present disability, including a dental disability, a Veteran must show: "(1) the existence of a present disability; (2) 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). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Generally, but not always, a nexus to service is established by medical evidence. However, in the case of chronic diseases set forth in 38 C.F.R. § 3.309, evidence of continuity of symptoms may also provide the requisite nexus. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Loss of teeth is not a considered a chronic disease for this purpose. The evidence clearly shows that the Veteran has lost all of his teeth. However, a relationship to disease or trauma in service is not shown. The Veteran's service treatment records reflect that the Veteran was involved in a single car accident in January 1963 while he was on leave. He was initially treated in a local hospital and then transferred to a military hospital. He was found to have sustained a comminuted fracture of the right femur, simple fracture of the right tibia and the medial malleolus, compound fracture of the left ulna, and simple fractures of the left and right mandible and left zygoma as well as multiple contusions. The mandibular and zygomatic arch fractures were treated with open reduction internal fixation. His facial fractures healed uneventfully, and after the internal fixation devices were removed he was able to eat solid foods without difficulty. The Veteran was medically discharged from the service in July 1963 as a result of the injuries that he sustained in the motor vehicle accident The Veteran had A VA dental examination in or around January 1964, at which time it was noted that teeth numbers 19 and 29 were missing but replaceable. However, the examiner did not explain the cause of the missing teeth. There was a finding of partial paraesthesia of the left maxillary crest. The Board notes that the Veteran is service connected for the latter condition. A medical examination was also performed in January 1964 which showed no abnormalities of the mandible, maxilla, or zygoma. The Veteran was able to open his mouth well and no crepitation or deformity was visible or palpable. The Veteran had another medical examination in November 1977. It was noted at that time that the Veteran recently had multiple dental extractions which were "probably unrelated" to his injuries from the 1963 car accident. He did have some slight malocclusion and drift of the jaw which was probably secondary to the mandibular fractures. In a June 1979 letter that the Veteran submitted in support of his claim for 100 percent disability benefits, among his other injuries he contended that all his teeth were knocked loose when his jaw was fractured. At a Board hearing in November 1979 the Veteran testified that he believed that he lost many of his teeth due to the January 1963 accident. He testified that he might lose all of his teeth because they were all knocked loose in the accident and had to be wired back in. The Veteran apparently received some VA dental treatment in the early 1980s. In January 1980 the Veteran told a VA dentist that his teeth were knocked loose in an automobile accident and his teeth were wired in. As a result of this, partial paresthesia exists and partials have been used as replacements. The dentist opined that an examination of the Veteran's mouth was consistent with this history. A May 1981 dental treatment note shows a presenting complaint of loose teeth due to old trauma and periodontal disease, and the teeth were scheduled for extraction under general anesthesia. A note from a few days later indicates that removal of all the Veteran's teeth was scheduled due to periodontal disease. The Veteran was reexamined by VA in January 1982. At that time, he complained of loose teeth which he stated started to go bad about twelve years after his accident. He did not have any jaw discomfort but there was clicking in the left temporomandibular joint. The Veteran gave a history of a fractured mandible (bilateral) and left zygoma due to an accident in 1963. Clinical evaluation revealed normal jaw excursion. Crepitus was present in the left temporomandibular joint with opening and closing but motion was not limited. Palpation of the osseous structures revealed no abnormalities and facial symmetry was within normal limits. There was generalized moderate to severe alveolar bone loss with significant tooth mobility patterns. These findings are consistent with chronic periodontal disease, which is not related to the jaw fracture. A February 1982 dental note indicates that a large number of the Veteran's teeth were being extracted due to "gross periodontitis." A VA dental examination was performed in January 2002, at which time the Veteran related that he broke his right jaw and left zygoma in service. He was treated by the VA dental service in 1981 when all his teeth were removed and dentures were made. The Veteran was unable to wear a lower denture but could still maintain nutrition. The loss of teeth caused typical alveolar bone loss. X-rays did not show any signs of incomplete or poor healing post mandibular fracture. In A July 2002 written statement the Veteran claimed that his teeth all fell out after being wired in for 18 years. He claimed they did not fall out due to disease but because they finally loosened. At a July 2006 Board hearing the Veteran testified that he believed his loss of teeth should be service connected because his teeth were knocked loose in the accident when his jawbone broke. In August 2006 the Veteran claimed that all his teeth were knocked loose in the 1963 car accident and the teeth were then wired back into place. In 1982 all of his teeth were pulled out. He believed that this was due to the motor vehicle accident. The Veteran was afforded a VA dental examination in March 2007. The examiner noted that the Veteran sustained oral and facial injuries from a January 1963 car accident. All reports indicated that the healing from bilateral fractures of the ramus was complete and normal. Oral fixation wires were removed. With regard to his jaw injury, the examiner noted that as shown on examinations in January 1964 and January 1982 there was partial paraesthesia of the fifth cranial nerve and not nerve paralysis. The Veteran had some of his teeth at the time of these examinations. X-rays that were taken at the January 1964 pension examination showed generalized moderate to advanced periodontal disease. The examination in January 1982 showed very similar conclusions. There was partial paraesthesia of the sensory branches of the fifth cranial nerve. There was slight crepitus of the temporomandibular joints but no restrictions on movement of the jaw. X-rays showed advanced periodontal disease with multiple tooth abscesses related to the periodontal disease and decay. Subsequently, he was seen by a VA oral surgeon and all his remaining teeth were removed. He received complete dentures at that time. Current physical examination of the mouth and jaw area continued to show a partial paraesthesia of the fifth cranial nerve causing facial numbness. Radiographs did not show any bony pathology. There were no residuals from the fixation of jaw fractures. The records review indicated that oral fixation device was removed while the Veteran was a hospital patient. He had normal alveolar ridge atrophy which was consistent with tooth absence and denture wear. There were no restrictions or limitations in range of motion for opening or closing any mandibular jaw movements. The examiner opined that the Veteran had all of his teeth removed in February 1982 due to advanced periodontal disease. This condition is due to local etiology factors of plaque, calculus, and poor oral hygiene. The tooth loss and alveolar bone loss is consistent with the diagnosis of chronic periodontal disease and has no direct relationship to the jaw fractures which had completely healed. The masticatory surface was replaced with conventional dentures and can still be replaced now. The Veteran stated that he did not wear his denture because it does not fit. The Veteran did not bring the denture to the examination. The Veteran was wearing his maxillary denture and it was recommended to be replaced due to its age as normal tissue changes and wear have rendered it non-serviceable. There was moderate alveolar bone loss in both the maxillary arch and the mandibular arch which is consistent with the time of tooth absence and denture wear since 1982. The bone loss is in the ridges that support the natural teeth and dentures if no teeth are present. There were no hard palate defects or discernible bone loss. The Veteran was afforded a VA dental examination in February 2008. At that time, the Veteran's primary complaint was an inability to wear dentures. The history given was that the Veteran had a fractured left zygoma and right mandible due to a car accident in 1963, at which time some of his teeth were knocked loose. His mouth was wired shut for three months. After the wires were removed the teeth were doing fine but later they started working themselves loose. Eventually they got so loose that they had to be extracted in 1982 and dentures were fabricated by VA. Both the upper and lower denture were not stable and would come loose. The Veteran stopped wearing his dentures since they would not stay in. He wanted new dentures. It was noted that at the time of the accident the Veteran acquired a paraesthesia on the left side involving the left zygoma to the left supraorbital area. Examination showed a loss of more than 50 percent of the bone of the maxilla, but the loss was replaceable by prosthesis although the examiner noted that due to the extent of ridge reabsorbed on the mandible the Veteran would have trouble retaining a mandibular denture. There was no malunion or nonunion of the maxilla, no loss of bone of the mandible, no nonunion or malunion of the mandible, or loss of bone of the hard palate. There was some loss of temporomandibular articulation. In an addendum, the examiner noted that the Veteran had fractures to the mandible and zygoma in 1963 which had completely healed. There was no dental abnormality other than partial paralysis of the fifth cranial nerve resulting in paraesthesia of the left maxilla. Dental records in January 1982 indicate that the Veteran stated that his teeth started to go bad about twelve years after his motor vehicle accident. Clinical evaluation at that time showed range of motion of the jaw was within normal limits, crepitus was apparent in the left temporomandibular joint on opening and closing with no apparent restriction. No osseous abnormalities were noted and facial symmetry was within normal limits. The clinical evaluation also stated that there was generalized moderate to severe alveolar bone loss with significant tooth mobility patterns. These findings are consistent with chronic periodontal disease and are unrelated to the jaw fracture. Radiographic examination at that time showed no residuals of the earlier mandibular fracture. The Veteran was reexamined in February 2009. At that time the Veteran reported that no teeth were knocked out in the motor vehicle accident in 1963. He was hospitalized and his mouth was wired shut for three months due to fractures in both the maxilla and the mandible. The wires were removed and complete healing of the facial fractures was achieved. The Veteran felt that he lost all his teeth in 1982 due to the trauma and he could not wear a lower denture. There was loss of more than 50 percent of the maxilla which was replaceable by prosthesis. There was also loss of half of the mandible not involving temporomandibular articulation. There was no nonunion or malunion of the mandible, loss of temporomandibular range of motion, loss of bone of the hard palate, or evidence of osteoradionecrosis or osteomyelitis. There was no tooth loss due to loss of substance of the maxilla or mandible other than loss due to periodontal disease. X-rays were obtained which showed complete healing of all fractures. The examiner opined that the etiologic agent responsible for the bone loss of the maxilla and mandible was periodontal disease, more specifically bacterial plaque, and smoking. In December 2009 the Veteran stated that it was his contention that his dental problems started in military service and has been an ongoing problem. The evidence does not show that it is at least as likely as not that the Veteran's loss of his teeth was due to loss of substance of the maxilla or mandible due to trauma or disease, other than periodontal disease. The Veteran had numerous VA examinations to determine the etiology of his loss of teeth, including in 1982, 2007, 2008, and 2009. All of these dentists, after examining the Veteran and reviewing the claims file, including documents pertaining to his 1963 jaw fracture, concluded that the Veteran's loss of teeth was due to periodontal disease which was unrelated to the jaw fracture. Review of x-rays as early as 1964 documented significant periodontal disease. No abnormalities of the mandible, maxilla, or zygoma were noted in 1964 and subsequent examinations and x-rays showed that the Veteran's jaw fracture was healed with no residual other than paraesthesia of the sensory portion of the fifth cranial nerve, which is not related to the Veteran's loss of teeth. While in 1980 a dentist opined that the Veteran's verbal history of having his teeth knocked loose in 1963 was consistent with his examination, other evaluations and examinations around that time, including in May 1981, January 1982, and February 1982, attributed the Veteran's dental problems and need for the removal of his teeth to periodontal disease. The February 1982 note associated with the removal of the Veteran's remaining teeth, which is highly probative as it is the closest in proximity to this event and was accomplished in conjunction the surgery, lists numerous teeth all of which were removed due to "gross periodontitis." The opinion of the oral surgeon who performed the removal of the Veteran's teeth as to the reason why the removal of teeth was necessary is highly probative evidence. Additionally, the VA examiners in 1982, 2007, 2008, and 2009, all of whom attributed the Veteran's loss of teeth to periodontal disease and not any trauma from the in service car accident, had the benefit of the review of the Veteran's claims file, including previous exams and x-rays, and therefore had a more complete view of the facts than the dentist who in 1980 stated that an examination was consistent with the Veteran's given history of dental trauma. The examiners in 1982, 2007, 2008, and 2009 all clearly explained that based on their examinations of the Veteran and review of prior x-rays and examinations, including records pertaining to the in-service motor vehicle accident and subsequent dental records showing increasingly severe periodontal disease over the years, the removal of his teeth was entirely unrelated to the jaw fractures which had completely healed. The Board acknowledges that the Veteran is competent to report that he felt that his teeth were loose after the car accident and that he had dental problems since service. The Board notes that whether the Veteran had periodontal disease in service is not relevant to a claim for service connection for loss of teeth for compensation purposes because loss of teeth due to periodontal disease is not considered disabling, regardless of when the periodontal disease process began. The Veteran's testimony that he felt like his teeth were knocked loose in the car accident is generally credible. However, it was not shown that this had any permanent effect or that it was in any way related to the Veteran's ultimate loss of all of his teeth. The Veteran's service treatment records reflect that the Veteran was able to eat normally after the internal fixation device was removed and there is no mention of residual problems with the jaw or teeth. Moderate periodontal disease was objectively shown to be present on x-ray as early as 1964 and more severely in 1982 around the time that his remaining teeth were removed. The dentists who evaluated the Veteran in 1982, 2007, 2008, and 2009 have specialized training and expertise in determining the etiology of dental conditions such as tooth loss. They were all in agreement that, in this case, the causative factor was periodontal disease. This highly probative evidence outweighs the Veteran's lay opinion about the cause for the removal of his teeth, which occurred over a period of years but most of the teeth were removed in 1982 which was approximately 19 years after his service and the car accident. The Veteran lacks the specialized medical or dental expertise that would be necessary to associate the removal of teeth to a car accident that occurred 19 years earlier, especially given the co-occurring periodontal disease which was also present. When the dentists who performed the multiple examinations of the Veteran evaluated all of the evidence using their specialized expertise, it was determined that the loss of the Veteran's teeth was not related to the 1963 car accident or any other disease or injury in service other than periodontal disease. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine is inapplicable in the instant case because the preponderance of the evidence is against the Veteran's claim. See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Accordingly, the appeal is denied. ORDER Entitlement to dental treatment is granted. Service connection for loss of teeth for compensation purposes is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs