Citation Nr: 1333200	
Decision Date: 10/23/13    Archive Date: 10/24/13

DOCKET NO.  11-31 880	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to service connection for dental trauma with loss of teeth.

2.  Entitlement to service connection for pes planus.


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

Shana Z. Siesser, Counsel



INTRODUCTION

The Veteran served on active duty from November 1989 to March 1992.

This matter comes before the Board of Veterans' Appeals (Board) from a March 2010 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

A review of the Veteran's Virtual VA electronic claims file reveals no additional records.

The issue of entitlement to service connection for bilateral pes planus 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.  The Veteran is not shown to have a dental condition resulting from a combat wound or other service trauma. 

2.  The Veteran does not meet the requirements for service connection for dental treatment purposes.


CONCLUSIONS OF LAW

1.  The criteria for entitlement to service connection for a dental disorder for purposes of VA compensation have not been met. 38 U.S.C.A. §§ 1110, 1131, 1721, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.381, 4.150, 17.161 (2012).

2.  The criteria for entitlement to service connection for dental treatment purposes have not been met.  38 U.S.C.A. §§ 1712, 5103(a), 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.381, 4.150, 17.161 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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; (3) that the claimant is expected to provide; and (4) VA must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), as was done in this case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

For claims pending before VA on or after May 30, 2008, 38 C.F.R. 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008).

In compliance with the duty to notify the Veteran of what information would substantiate his claim, the Veteran was advised that VA used a Schedule for Rating Disabilities (Schedule) that determined the rating assigned and that evidence considered in determining the disability rating included the nature and symptoms of the condition, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment. 

Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran dated in July 2008 that fully addressed all notice elements.

VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical 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 Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the service treatment records, service dental records, VA outpatient treatment records and private medical records. 

Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. 

No further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran 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). 
 
Service Connection for Dental Disorder

The Veteran contends that he is entitled to a grant of service connection for the loss of his front left tooth during service as a result of a trauma.  As the preponderance of the probative evidence does not support findings of in-service trauma, an in-service loss of tooth, or a current injury, the Veteran's claim is denied.  

At the outset, the Board notes that a claim for service connection for a dental disorder is also considered a claim for VA outpatient dental treatment.  Mays v. Brown, 5 Vet. App. 302, 306 (1993).  To establish entitlement to service connection for a tooth in particular, the Veteran must have sustained a combat wound or other in-service trauma.  See 38 U.S.C.A. § 1712 (2002); 38 C.F.R. § 3.381(b) (2012).  The significance of finding that a dental condition is due to in-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) (2012). 

Service connection may generally be established for a disability resulting from disease or injury incurred in or aggravated by active service (38 U.S.C.A. § 1110; 38 C.F.R. § 3.303).  An exception to the general rule is applicable to dental disabilities.  The regulations governing dental claims make a fundamental distinction between "replaceable missing teeth", 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. See 38 C.F.R. § 4.150; Simington v. West, 11 Vet. App. 41, 44 (1998). Absent a demonstration of dental trauma, service connection may be considered solely for the purpose of determining entitlement to dental examinations or outpatient dental treatment. See Woodson v. Brown, 8 Vet. App. 352, 354 (1995).

Under 38 C.F.R. § 3.381, replaceable missing teeth are not compensable disabilities and will be considered service connected solely for the purpose of establishing eligibility for outpatient dental treatment as provided in 38 C.F.R. § 17.161. 38 U.S.C.A. § 1712 (West 2002); 38 C.F.R. § 3.381(a). 

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).

Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b).

In his claim, the Veteran alleged that he was struck with a rifle during basic training, which resulted in the loss of a front left tooth.  He stated that he was immediately taken for treatment and the tooth was fixed.  In his November 2011 substantive appeal, he requested that the tooth be repaired again.  

The service dental records show that in July 1996, the Veteran had odontectomies of teeth 1, 16, 17, and 32, which are all located in the back of his mouth and not the front. The records also show the Veteran had sealants in teeth 2, 3, 14, 15, 18, and 31. At a periodic examination in March 1999, it was noted that the lingual ledge of tooth 9 needed to be smoothed or removed.  Finally, in May 2000, tooth 18 was treated with an amalgam.

There are no post-service VA or private dental treatment records and there is no objective medical evidence of complaints, findings, or treatment related to any deformities of the Veteran's teeth or jaw.  

Overall, the only evidence in the record that is favorable to the Veteran's claim are his own lay assertions concerning the alleged trauma and his subjectively reported dental history.  In addressing lay evidence and determining what, if any, probative value may be attached to it, attention must be directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

The United States Court of Appeals for Veterans Claims (Court) has held that Veterans are competent to offer statements as to the continuity and severity of symptoms arising from his or her injuries.  See Barr v. Nicholson, 21 Vet. App. 303, 308 -09 (2007) (holding that lay evidence is competent with regard to a disease or injury with "unique and readily identifiable features" that are "capable of lay observation."); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (holding that a Veteran is competent to report as to onset and symptoms of a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (holding that a Veteran is competent to report as to onset and symptoms of tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (holding that a Veteran is competent to report as to the onset and symptoms of flatfoot).  Certainly, under the foregoing legal authority, the Veteran is competent to offer probative statements as to the onset and subsequent continuity of his claimed dental injuries.

Nonetheless, the Board finds that the probative value of the Veteran's assertions that he sustained any traumatic injuries to his tooth during basic training is outweighed by the contemporaneous medical evidence.  In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  See generally Caluza v. Brown, 7 Vet. App. 498 (1995).  

The Board may also weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim).  

In this case, the Veteran's assertions concerning the trauma sustained by the 1996 rifle incident and the dental injury which allegedly resulted are contradicted by the absence of any objectively noted traumatic dental injuries, or reference to any subsequent treatment in his dental record for traumatic dental injuries.  As noted, the only clinical records pertaining to a front tooth was at a periodic examination in 1999, where it was noted that the lingual edge of tooth 8 was removed or smoothed.  There is no indication of trauma or loss of a tooth in this record.  The notation of such things would normally be expected to be found in the Veteran's dental treatment records and service treatment records, particularly in view of the nature and severity of the injuries alleged by the Veteran (i.e., loss of a tooth due to being struck by a rifle).  

Moreover, and as alluded to above, the dental treatment records and service treatment records in the claims file encompass the entire period of the Veteran's active duty service, and, there is no indication that these records are incomplete.  Under the circumstances, the Board is unable to assign significant probative weight to the Veteran's assertions and assigns far greater probative weight to the objective evidence shown in the in-service and post-service treatment records.

Moreover, the Veteran has not submitted any evidence of a current injury.  Based on the Veteran's own account, his tooth was repaired during service and no residual injury has been alleged.  

The Board recognizes that the Veteran has not been afforded a VA examination of his claimed dental injuries.  Such an examination, however, is not required in this case in the absence of any competent or credible evidence showing that the Veteran has any history of traumatic injuries to his teeth or a current loss of teeth.  Even if such injuries were shown in the record, there is also no evidence in the record which would demonstrate a relationship between such injuries and the Veteran's active duty service.  In short, the evidence does not establish a prima facie claim for service connection for a dental disorder; hence, VA is not obliged to obtain a medical opinion concerning the Veteran's claimed dental disability.  See 38 U.S.C.A. § 5103A(d); Wells v. Principi, 326 F. 3d. 1381, 1384 (Fed. Cir. 2003); see also Duenas v. Principi, 18 Vet. App. 512 (2004) (per curium).

Thus, the Board finds that the Veteran has not presented any competent evidence that he has a dental disorder for which service-connected compensation may be granted.

In the context of determining whether a Veteran has treatment eligibility, legal authority describes various categories of eligibility for VA outpatient dental treatment, to include Veterans having a compensable service-connected dental condition (Class I eligibility); one-time treatment for Veterans having a noncompensable service-connected dental condition, provided they apply for treatment within a year after service (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 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. (Class VI eligibility).  38 U.S.C.A. § 1712; 38 C.F.R. § 17.161. 

The Veteran does not fall into any eligibility class under 38 C.F.R. § 17.161.  He does not have a service-connected dental condition, whether compensable or non-compensable, hence precluding Class I and Class II eligibility.  Also, the record does not show that the Veteran incurred any wounds in combat or was a POW.  Class IIR (Retroactive) treatment benefits do not apply in this case, as the Veteran did not enter the service until 1996.  There is also no evidence that his service-connected disorders, which include cervical strain, bilateral patellofemoral pain syndrome, right rotator cuff tendonitis, tinnitus, gastroesophageal reflux disease, and asthma, are aggravated by a dental disorder.  

Furthermore, the Veteran does not have a 100 percent rating, nor is he participating in a rehabilitation program under 38 U.S.C.A., Chapter 31, and fixing his dental problems is not medically necessary for a medical condition currently under treatment by VA.  For these reasons, the Board finds that the Veteran also does not qualify for Class II(a), (b), (c), IIR, III, IV, V, or VI eligibility.

Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim service connection for a dental disability for compensation or treatment purposes. The benefit-of-the-doubt rule does not apply, and this claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002).


ORDER

Service connection for dental trauma, with loss of teeth is denied. 


REMAND

A remand is necessary to afford the Veteran a VA examination to determine the etiology of his podiatric disorder.  

In McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), the United States Court of Appeals for Veterans Claims (Court) held that VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim.

In this case, the Veteran has been assessed as having posterior tibial tendon dysfunction with decreased painful arch, heel pain, plantarfascial pain, hallux valgus, and sciatica. See January 2010 VA podiatry record.  

In an October 2008 VA examination of the Veteran's knees, the examiner concluded that his service-connected patellofemoral pain syndrome occurred during military service while performing forced pack marches/runs.  The Veteran contends that his currently diagnosed podiatric disorders are also a result of these marches and runs during his military service.  

However, he has not been provided a VA examination, and there is no medical opinion addressing the etiology of his claimed disorders. Therefore, the Board finds that a VA examination and medical opinion are necessary.

Accordingly, the case is REMANDED for the following action:

1. The RO/AMC should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his bilateral foot disorders. After acquiring this information and obtaining any necessary authorization, the RO should obtain and associate these records with the claims file.  Any outstanding VA medical records should be obtained and associated with the file. 

2. The Veteran should be afforded a VA examination to determine the nature and etiology of any bilateral foot disorders that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, lay statements, and assertions.

It should be noted that the Veteran and other laypersons are competent to attest to observable symptomatology and matters of which they have first-hand knowledge. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. 

The examiner should identify all current diagnoses of bilateral foot and right knee disorders. For each diagnosis identified, the examiner should state whether it is at least as likely as not the disorder manifested in service or is otherwise causally or etiologically related to the Veteran's military service, including his documented symptomatology therein. 

(The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) 

A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review.

3. The RO/AMC should ensure that there has been compliance with the directives of this remand and conduct any other development that may be indicated. 

4. When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned 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).



______________________________________________
JESSICA J. WILLS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs