Citation Nr: 1331675 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 10-09 245 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for dental disease, for the purpose of receiving VA compensation and outpatient dental treatment. 2. Entitlement to service connection for temporomandibular joint (TMJ) disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1955 to September 1958. This appeal to the Board of Veterans' Appeals (Board) arises from a rating decision of the Houston, Texas Regional Office (RO) of the Department of Veterans Affairs (VA). The Board notes that the original issue on appeal was characterized as entitlement to dental disease with TMJ disorder. As discussed in the remand section, the record is insufficient to determine whether the Veteran currently has a TMJ disorder due to service. Additionally, service connection for a dental disorder is compensable under certain circumstances, but also raises a claim for service connection for outpatient dental treatment purposes. Mays v. Brown, 5 Vet. App. 302 (1993). Therefore, the original issue on appeal has been recharacterized as two separate issues-entitlement to service connection for dental disease, for the purpose of receiving VA compensation and outpatient dental treatment, and entitlement to service connection for TMJ disorder. It is noted that the RO adjudicated this matter and provided notice, and as such the Board may proceed on this matter as well. The Veteran testified at a hearing conducted by a Decision Review Officer in March 2011. A transcript of the hearing has been associated with the claims file. The Veteran appeared at a video conference hearing before the undersigned Veterans Law Judge in July 2013. A transcript of that hearing has been associated with the electronic claims file, known as Virtual VA. 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 issue of entitlement to service connection for TMJ disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. There is no evidence or contention the Veteran lost any teeth during his military service as a result of dental trauma or as a result of loss of substance of the body of the maxilla or mandible due to trauma or disease such as osteomyelitis. 2. The Veteran does not have a current dental disorder that is service-connected for compensation purposes; his active service discharge occurred prior to September 30, 1981; he did not incur in-service dental trauma; he is not homeless; he was not detained or interned as a prisoner of war (POW); he does not have a dental disorder clinically determined to be complicating a medical condition being treated by VA; his service-connected disabilities are not rated as totally disabling; and he is not a Chapter 31 vocational rehabilitation trainee. CONCLUSION OF LAW The criteria are not met for service connection for a dental disease disability for purposes of receiving VA monetary compensation or VA outpatient dental treatment. 38 U.S.C.A. §§ 1131, 1712, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.381, 4.150, 17.161 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in January 2008 and March 2008 letters, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claims, including what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The case was last adjudicated in June 2012. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, VA treatment records, private dental treatment records, the transcripts of testimony from March 2011 and July 2013 hearings, and written statements of the Veteran. Additionally at the time of the personal hearings the issues on appeal were explained and questions were asked designed to elicit evidence that may have been overlooked. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent argument in compliance with 38 C.F.R. § 3.103(c)(3). In sum, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Thus, the Veteran was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Veteran contends that he has dental disease caused by the removal of molar teeth following his October 1955 dental examination upon his entrance into service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet. App. 341, 346 (1999). In this case, the Veteran's service treatment records show that at his October 1955 initial dental examination, tooth decay was found in 7 teeth, including the top right molar and a bottom left molar. These two teeth, numbers 2 and 18, were extracted the next week. Private dental records show that the Veteran was treated by a private dentist in March, April, and June 2007 and April 2011 for dental problems including extensive attrition of the lower anterior teeth. The dentist noted that the Veteran had worn the lower anterior teeth to gum level due to bruxism. The Veteran stated at his July 2013 Board hearing that during his initial dental examination upon joining the Navy he had several molars and a wisdom tooth extracted. He stated that the removal of these teeth caused his other teeth to shift in place, resulting in an abnormal bite that has caused him to wear down the enamel on his other teeth. He explained that his gums are "so tight together that they actually irritate each other" on the right side, that his front teeth have worn down to the gum, and his upper teeth have worn down and become quite sharp. He also stated that he has tried using prosthetic teeth, but these were not helpful. The Veteran expressed similar contentions at his March 2011 Decision Review Officer hearing. The Board first considers potential entitlement to service connection for VA compensation purposes for his claimed dental disability. The dental conditions for which service-connected compensation benefits are available are set under 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916 (2012). Disability compensation and VA outpatient dental treatment may be provided only 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. Under 38 C.F.R. § 3.381, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are to be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment as provided in 38 C.F.R. § 17.161. In this case, there are no statutory or regulatory provisions that might allow the Veteran to establish entitlement to service connection for compensation purposes for his claimed dental disease. With respect to service connection for his missing teeth removed in service and for his addition worn or broken teeth, the regulations governing dental claims make a fundamental distinction between "replaceable missing teeth" (in the context of service connection for treatment purposes, see 38 C.F.R. § 3.381(a) ) and teeth lost as a result of loss of substance of body of maxilla or mandible due to trauma or disease such as osteomyelitis, and not loss of the alveolar process as a result of periodontal disease (in the context of service connection for compensation purposes). See 38 C.F.R. § 4.150; Simmington v. West, 11 Vet. App. 41 (1998). The Veteran's service treatment records clearly show that he had teeth removed by a dentist as a result of tooth decay. The Veteran's dental records from service and post-service treatment record fail to show that he sustained any damage during service to his maxilla (upper jaw bone) or mandible (lower jaw bone) from his in-service dental problems and treatment, nor has the Veteran asserted that he experienced any bone loss to the jaw during or after service. There is absolutely no evidence indicating that the Veteran has had loss of substance of body of maxilla or mandible due to trauma or disease at any time during his service or the period on appeal. Thus, service connection may not be established for compensation purposes for missing or damaged teeth. Id; see also Woodson v. Brown, 8 Vet. App. 352, 354 (1995). Next, the Board's inquiry turns to whether the Veteran is eligible for VA outpatient dental treatment; but again, the evidence does not support his claim for service connection. When applicable, a determination will be made as to whether the dental condition claimed is due to a combat wound or other service trauma, or whether the Veteran was interned as a POW. 38 C.F.R. § 3.381(b). The significance of finding that a dental condition is due to 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. 38 C.F.R. § 17.161(c). Under 38 C.F.R. § 17.161, outpatient dental treatment may be authorized by the Chief of Dental Service for beneficiaries defined in 38 U.S.C.A. 1712(b) and 38 C.F.R. 17.93 (2012) to the extent prescribed and in accordance with the applicable classification and provisions set forth in this section. There are various categories of eligibility for VA outpatient dental treatment, including the following: 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 are homeless or enrolled in other eligible VA program (Class II(b) eligibility); those who were detained as a POW (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 an 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.A. 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. (Class VI eligibility). 38 U.S.C.A. § 1712; 38 C.F.R. § 17.161. Importantly, in this case, the Veteran's dental-related service treatment records simply do not show, and the Veteran does not contend, any actual dental trauma during his service. The Veteran's service treatment records do indicate that he had teeth extracted by a dental professional as part of regular dental treatment. However, there simply is no indication that he lost or damaged any teeth due to trauma sustained outside the course of the dental treatment he was provided while in service. The treatment the Veteran received in service does not constitute dental trauma for purposes of subsequently establishing entitlement to VA outpatient dental treatment. Indeed, this is true as a matter of law. Therapeutic and restorative dental treatment, such as fillings, bridges, and extractions, almost always involves physical impact of the teeth. The intended effect of dental treatment performed in service, including extractions of teeth, is not considered dental "trauma" as the term is defined in 38 C.F.R. §§ 3.381 and 17.161. See also 38 U.S.C.A. § 7104(c); Smith v. West, 11 Vet. App. 134 (1998). To merely have had dental extractions during service is not tantamount to dental trauma, because trauma of teeth, even extractions, in and of itself, does not constitute "dental trauma" for VA purposes. The U.S. Court of Appeals for the Federal Circuit has held that, for these purposes, "service trauma" means "an injury or wound produced by an external physical force during the performance of military duties, and does not include the intended result of proper medical treatment." Nielson v. Shinseki, 607 F.3d 802, 804 (Fed. Cir. 2010). Since the Veteran does not allege any injury to his teeth outside of the normal course of in-service dental treatment, the Board finds he did not suffer dental "trauma" as contemplated by VA's laws and regulations. 38 C.F.R. §§ 3.381, 17.161. Consequently, under this basis, the Veteran fails to establish eligibility for dental treatment. Considering all of the provisions of 38 C.F.R. § 17.161, there are no other categories of eligibility for which the Veteran may qualify. Class I benefits are only warranted where there is evidence that the removal of teeth was due to bone damage to either of the jaws, which, as discussed above, is not shown in this case. 38 C.F.R. § 17.161(a). The Veteran also fails to establish eligibility for Class II treatment, one-time dental treatment for Veterans having a noncompensable service-connected dental condition or disability in existence at the time of discharge, because this only applies to Veterans discharged after September 30, 1981. 38 C.F.R. § 17.161(b). See 73 FR 58875 (Oct. 8, 2008). Class II treatment is not applicable here, as the Veteran was discharged in 1958. There is also no indication or assertion in the record the Veteran served in combat, was a POW, experienced service trauma, or has ever been homeless, precluding entitlement to Class II(a), Class II(b), and Class II(c) treatment. See 38 C.F.R. § 17.161(c)-(e). There has been no suggestion that he is entitled to Class IIR retroactive eligibility pursuant to 38 C.F.R. § 17.161(f). There is no indication in the record that he has a dental condition impairing or aggravating a service-connected condition (Class III eligibility); that he has disabilities rated as 100 percent disabling by schedular evaluation, as he is currently rated only for hearing loss, evaluated at 30 percent, and for tinnitus, evaluated at 10 percent, or due to individual unemployability (Class IV eligibility); or that he is a Chapter 31 vocational rehabilitation trainee (Class V eligibility). See 38 C.F.R. § 17.161(g)-(i). Nor is he receiving or scheduled to receive VA care and treatment under Chapter 17 (Class VI eligibility). See 38 C.F.R. § 17.161(j). In summary, there is no basis to grant service connection for a dental disorder for VA compensation or outpatient treatment purposes. In light of the above discussion, the Board concludes that the majority of the evidence does not support the claim for service connection. Since there is no doubt to be otherwise resolved, the appeal is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for dental disease, for the purpose of receiving VA compensation and outpatient dental treatment, is denied. REMAND The Veteran also claims entitlement to service connection for TMJ disorder as a result of improper dental treatment that he received in service in 1955. As discussed above, the Veteran had two molar teeth extracted in service in October 1955. He contends that the removal of these teeth altered his bite and has caused him to develop a TMJ disorder, which disturbs his natural bite and causes him to frequently bite his cheeks and lips. The Veteran stated at his July 2013 Board hearing that he was first diagnosed with a TMJ disorder in 1979. The Veteran's private dental records show that he has undergone restorative work on his teeth and has a current diagnosis of bruxism. VA will provide a medical examination or obtain a medical opinion if the record, including lay or medical evidence, contains competent evidence of a disability that may be associated with an event, injury, or disease that occurred in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159 (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83. As the record currently contains no medical opinions on whether the Veteran currently has TMJ or other jaw-related disorder due to an event in service, the RO/AMC should arrange for the Veteran to undergo examination, by an appropriate examiner, at a VA medical facility. The Veteran has also indicated at his July 2013 Board hearing that he was scheduled for an August 2013 dental evaluation from VA. This dental record, and any other relevant VA treatment records from the Michael E. DeBakey VA Medical Center in Houston, Texas, should be obtained, to the extent available, and associated with the claims file. 38 U.S.C.A. § 5103A(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). The RO/AMC must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. 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. The RO/AMC should obtain from the Michael E. DeBakey VA Medical Center in Houston, Texas all outstanding, pertinent records of relevant treatment of the Veteran, including his August 2013 dental evaluation. The RO/AMC must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Thereafter, arrange for the Veteran to undergo an appropriate VA examination performed by a qualified examiner to determine whether the Veteran has a current diagnosis of TMJ disorder and its likely etiology. The entire claims file must be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and lay assertions. All appropriate tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. Based on examination findings, medical principles, and historical records, including available service treatment records, the examiner should state whether the Veteran currently has a TMJ disorder or any other disorder affecting the jaw. For each diagnosed disorder, the examiner should render an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disorder had its onset or is otherwise related to any event or injury incurred in active duty service. The Veteran's dental records in service, as well as his reports of continuing bite problems from that time, should be considered and discussed. It should also be indicated whether the in-service treatment is such that it would result in significant movement of teeth and subsequent difficulties. The examiner should set forth all examination findings, along with a complete rationale for the conclusions reached. If any requested opinion cannot be provided, the examiner should clearly state the reasons why. 3. The Veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further adjudication. 5. After completing the requested actions, the RO/AMC should readjudicate the claim in light of all pertinent evidence. If the benefit sought on appeal remains denied, the Veteran and his representative shall be provided with a supplemental statement of the case, with appropriate time allowed for response. The Board intimates no opinion as to the outcome in this case by the action taken herein The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs