Citation Nr: 1333317 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 07-29 178 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for loss of teeth and periodontal disease, including as due to herbicide exposure, for the purpose of establishing entitlement to disability compensation and dental treatment. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran had active military service from October 1965 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) from a June 2006 rating decision by the Department of Veterans Affairs (VA), Regional Office (RO) in Seattle, Washington. The Veteran testified at a Travel Board hearing in December 2009 before a Veterans Law Judge who is no longer employed at the Board. A transcript of that hearing is of record. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in March 2013. A transcript of that hearing is of record. The Board remanded this matter in December 2009 for proper notice and evidentiary development. The matter was remanded again in August 2012 to provide the Veteran with another Board hearing. It has now returned to the Board for further appellate consideration. The Board finds, as is discussed in further detail below, that the RO substantially complied with the mandates of the remands and will proceed to adjudicate the appeal. In May 2013, the Board requested a medical expert opinion from the Veterans Health Administration (VHA). A response was received in June 2013. The Veteran and his representative were provided with a copy of the medical opinion. Accordingly, this issue is before the Board for appellate review. See 38. C.F.R. §§ 20.903, 20.1304(c) (2013). FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran did not receive any dental trauma to include loss of teeth due to loss of substance of the body of the maxilla or mandible during active military service. 2. The preponderance of evidence reveals that the Veteran does not have a service-connected dental disability, he was not a prisoner of war during military service, he has not filed a previous application for dental treatment, a dental disorder is not aggravating a service-connected disability, he is not in receipt of a 100 percent disability rating for service-connected disabilities, he is not participating in a rehabilitation program and he is not receiving care or service under 38 U.S.C.A. chapter 17. CONCLUSION OF LAW The criteria for service connection for a dental disorder to include as due to trauma and herbicide exposure for VA compensation purposes or outpatient dental treatment are not met. 38 U.S.C.A. §§ 1110, 1712, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.381, 4.150, 17.161 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance The United States Department of Veterans Affairs (VA) has a duty to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to claims for service connection for a disability, the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of the claim: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Thus, upon receipt of an application for a service-connection claim, VA must review the information and the evidence presented with the claim and provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. After careful review of the claims folder, the Board finds that VCAA letters dated in April 2006 and September 2010 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this regard, the letters informed the Veteran of what evidence was required to substantiate his service connection claim for a dental disorder. The Veteran was notified of how VA determines the disability rating and effective date if his claim is granted. The letters also informed the Veteran of his and VA's respective duties for obtaining evidence. The letters requested that he provide enough information for the RO to request records from any sources of information and evidence identified by the Veteran. The information in the April 2006 letter was provided to the Veteran prior to the initial AOJ decision in June 2006. However, the letter in September 2010 satisfied some of the duty to notify provisions subsequent to the initial AOJ decision. The Board finds that this error was not prejudicial to the Veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the Veteran been afforded a meaningful opportunity to participate effectively in the processing of his claims and given ample time to respond, but the AOJ also readjudicated the case by way of the supplemental statement of the case issued after the notice was provided. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran will not be prejudiced by the Board proceeding to decide his claim, as the timing error did not affect the essential fairness of the adjudication. Regarding VA's duty to assist, the Board finds that VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment records, private dental treatment records, VA treatment records, an October 2010 VA examination, a June 2013 VHA medical expert opinion, lay statements and transcripts of the December 2009 and March 2013 Board hearing. The October 2010 VA examination report reflects that the examiner conducted a review of the Veteran's claims file in addition to obtaining an oral history and providing a physical evaluation of the Veteran. Following the above, the examiner provided an assessment of the Veteran's current dental condition and he provided a medical opinion that was based on the evidence of record. Accordingly, the Board concludes that the examination is adequate for adjudication purposes. The Board requested a VHA medical expert opinion to obtain further evidence with respect to the Veteran's claim of dental trauma due to the removal of the wrong tooth. The Federal Circuit Court has upheld the Board's power to both obtain such opinions and adjudicate the matter without RO review, provided that the claimant is provided a copy of the examination report and an opportunity to respond. Disabled American Veterans, et.al, vs. Secretary of Veterans Affairs, 419 F.3d 1317 (Fed. Cir. 2005). The VHA medical expert opinion dated in June 2013 shows that the medical expert reviewed the Veteran's claims file to include his VA treatment records. He provided an explanation for his opinion which appears to be based on the evidence of record and his medical expertise. Accordingly, the Board finds the VHA medical expert opinion is adequate for adjudication purposes. The Board observes that the Veteran's service dental treatment records are unavailable. In a case in which a veteran's service records are unavailable through no fault of his or her own, there is a heightened obligation for VA to assist the veteran in the development of his or her claim and to provide reasons or bases for any adverse decision rendered without these records. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991); Moore v. Derwinski, 1 Vet. App. 401 (1991) (holding that the heightened duty to assist a veteran in developing facts pertaining to her claim in a case in which service medical records are presumed destroyed includes the obligation to search for alternative medical records). A review of the claims folder reveals that VA has fulfilled its heightened duty to assist the Veteran. The RO requested the Veteran's service dental treatment records through the Personnel Information Exchange System (PIES) in April 2006. The RO received a response in April 2006 indicating that all available service medical records were mailed. The RO submitted a request for complete medical and dental records in February 2011. The RO received the response that all service treatment records were sent to the RO in May 2006. The RO submitted a request through PIES in April 2011 for dental records from Silas B. Hays U.S. Army Community Hospital, Fort Ord, California between October 1965 and December 1965. The RO received a negative response in May 2011. The RO made a formal finding of unavailability of the dental records in June 2011 documenting the attempts to obtain the Veteran's records. In addition, as noted in the Introduction, this issue was previously remanded in December 2009. The December 2009 Board remanded requested that the RO/AMC provide the Veteran with proper notice, to obtain any outstanding dental records, to attempt to obtain any outstanding service dental records and to schedule a VA examination. A September 2010 letter provided the Veteran with proper notice. The claims file contains additional private dental treatment records. The record also contains an October 2011 VA examination report that is supported with an explanation. The Board remanded the claim again in August 2012 to schedule the Veteran for a Board hearing. The claims file contains a transcript of the March 2013 Board hearing. Accordingly, the Board finds that there has been substantial compliance with the December 2009 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Furthermore, there is no indication in the file that there are additional relevant records available that have not yet been obtained. Therefore, the Board finds that all relevant facts have been developed properly and sufficiently in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. II. Criteria and Analysis Upon review of the record, the Board finds that the Veteran has essentially claimed two separate disabilities. First, he contends that the military extracted the wrong tooth while he was at Fort Ord. The Veteran asserts that while in basic training he sought treatment for an abscess in the mouth resulting in tooth extract. He asserts that the wrong tooth was extracted and he had to return to have another tooth extracted. Second, he contends that he has gum disease causally related to active service, to include herbicide exposure. He explained that after separation from military service he began to have significant dental problems. Service connection for compensation purposes can only be established for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150 (2013), such as impairment of the mandible, loss of a portion of the ramus and loss of a portion of the maxilla. Compensation is available for loss of teeth only if due to loss of substance of the body of the maxilla or mandible. 38 C.F.R. § 4.150, Diagnostic Code 9913; see Simmington v. West, 11 Vet. App. 41 (1998). For loss of teeth, bone loss through trauma or disease such as to osteomyelitis must be shown for purposes of compensability. The loss of the alveolar process as a result of periodontal disease is not considered disabling. 38 C.F.R. § 4.150, Diagnostic Code 9913, Note (2013). It should be noted that for the purposes of determining whether a veteran has treatment eligibility, the term "service trauma" does not include the intended effects of treatment provided during the Veteran's military service. The regulations are intended to cover dental trauma involving external, sudden-force injury, such as a combat wound to the teeth and jaw. VAOPGCPREC 5-97 (1997); see also Nielson v. Shinseki, 607 F.3d. 802 (Fed. Cir. 2010). The Veteran's private treatment records show that the Veteran was diagnosed with periodontal disease in August 1988. He received complete dentures in 2010. See VA examination dated in October 2010. X-rays conducted in October 2010 revealed moderate atrophy of the max and mand alveolar ridges. Unfortunately, the Veteran's service dental records are not available. The Veteran's service treatment records are negative for any trauma to the teeth or mouth during service. The Veteran denied having had or having at that time severe tooth or gum trouble in an October 1967 Report of Medical History form as part of his separation from active military service. The Veteran's separation examination does not document any missing teeth. A notation under remarks and additional defects and diseases indicated that the Veteran's dental evaluation was acceptable class II. The assignment of class II indicates that the Veteran may have needed some fillings or some other routine preventive care. With respect to the Veteran's assertion that a wrong tooth was extracted during military, the Board notes that the Veteran testified that there was no dental trauma to his tooth, such as a broken tooth, loose tooth, or injured jaw. The Veteran did not specify which teeth were pulled; regardless, as noted above, replaceable missing teeth are not considered disabling conditions. Furthermore, the Veteran does not contend and the evidence does not otherwise show that any lose of teeth during service was due to bone loss through trauma or disease such as to osteomyelitis; thus, service connection for compensation purposes is not warranted. See 38 C.F.R. § 4.150. Regarding the Veteran's assertion that service connection is warranted for periodontal disease due to herbicide exposure while stationed in Vietnam, the Board notes that the loss of the alveolar process as a result of periodontal disease is not considered disabling. 38 C.F.R. § 4.150, Diagnostic Code 9913, Note (2013). VA regulations provide that certain common dental conditions, including periodontal disease, can be service connected only to establish eligibility for outpatient dental care, not to receive disability compensation. 38 C.F.R. § 3.381(a) (2013). Based on the foregoing, the Board finds that the preponderance of the evidence shows that the Veteran did not experience loss of teeth due to loss of substance of the maxilla or mandible due to any in-service dental trauma or disease. Loss of the alveolar process as a result of periodontal disease is not considered disabling for compensation purposes. Thus, service connection may not be established for compensation purposes for the alleged extraction of an incorrect tooth or periodontal disease under 38 C.F.R. § 4.150. Absent a demonstration of dental trauma, service connection may not be considered for compensation purposes, but 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). The determination of whether service connection may be established for the purpose of outpatient dental treatment is based on the criteria set forth in 38 C.F.R. § 3.381 (2013). As provided by VA regulations, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses and periodontal disease are not considered to be disabling conditions, but may be considered service connected solely for the purpose of establishing eligibility for VA outpatient dental treatment. See 38 U.S.C.A. § 1712 (West 2002); 38 C.F.R. § 3.381(a), 17.161 (2012). Service connection may be granted for a dental condition of each tooth and periodontal tissue shown by the evidence to have been incurred in or aggravated by service. When applicable, a determination will be made as to whether it is due to a combat wound or other service trauma, or whether the Veteran was interned as a prisoner of war (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). The following principles apply to dental conditions noted at entry and treated during service: (1) teeth noted as normal at entry will be service connected if they were filled or extracted after 180 days or more of active service; (2) Teeth noted as filled at entry will be service connected if they were extracted or if the existing filling was replaced after 180 days or more of active service; (3) Teeth noted as carious but restorable at entry will not be service connected on the basis that they were filled during service. However, new caries that developed 180 days or more after such a tooth was filled will be service connected; (4) Teeth noted as carious but restorable at entry, whether or not filled, will be service connected if extraction was required after 180 days or more of active service; (5) Teeth noted at entry as nonrestorable will not be service connected regardless of treatment during service; (6) Teeth noted as missing at entry will not be service connected regardless of treatment during service. 38 C.F.R. § 3.381(d). The following will not be service connected for treatment purposes: (1) calculus; (2) acute periodontal disease; (3) 3rd molars, unless disease or pathology of the tooth developed after 180 days or more of active service, or was due to combat or in-service trauma; (4) impacted or malposed teeth, and other developmental defects, unless disease or pathology of these teeth developed after 180 days or more of active service. 38 C.F.R. § 3.381(e). It is important to note that teeth extracted because of chronic periodontal disease will be service connected only if they were extracted after 180 days or more of active service. 38 C.F.R. § 3.381(e). There are various categories of eligibility for VA outpatient dental treatment, including 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 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 or her 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 Board has examined all the classifications of dental disability under 38 C.F.R. §§ 3.381 and 17.161 and has found none that would apply to the Veteran. In this regard, the Veteran does not meet the requirements of class I because, as discussed in detail above, he does not have a service-connected compensable dental condition or disability. 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. A review of the record on appeal shows that he waited until 2006, approximately 39 years after his separation from active duty service in October 1967, to apply for these benefits and such claims must be made within one year after a claimant's separation from active military service. Regarding whether the Veteran has a dental condition or disability that is the result of combat wounds or other service trauma, the Board notes that therapeutic and restorative dental treatment, for example, 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) (West 2002); Smith v. West, 11 Vet. App. 134 (1998). To 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. See Nielson v. Shinseki, 607 F.3d. 802 (Fed. Cir. 2010), VAOPGCPREC 5-97, 62 Fed. Reg. 15,566 (1997). With respect to the Veteran's assertion that he underwent dental surgery in service which involved a healthy tooth, the Board has considered whether the evidence of record indicates that an alleged in-service dental procedure was done incorrectly by extracting the wrong tooth and the Veteran had service trauma due to the unintended result of treatment due to medical malpractice. The Federal Circuit defined "service trauma" as "an injury or wound produced by an external physical force during the service member's performance of military duties." Nielson, 607 F.3d. at 808. This definition may encompass unintended results of treatment due to medical malpractice, however, excludes the intended result of proper medical treatment. Id. There is no medical evidence of record that indicates an in-service dental procedure resulted in the extraction of the wrong tooth. The Board notes that the Veteran is competent to report that two teeth were extracted during military service. Nonetheless, the Board finds that his statement that a dentist incorrectly pulled the wrong tooth is not credible. In this regard, the Veteran's separation examination in October 1967 did not document any missing teeth and the Veteran denied having had any severe tooth or gum trouble. Furthermore, a VA medical expert opinion indicates that based on the dental records in the claims file, two adjacent teeth were not extracted during service. He noted that the teeth that appear to be missing in the post service record are #13, #16, #17 and #32. The medical expert explained that the upper teeth are not next to each other and are separated by three other teeth. He determined that it could not be possible that the dentist took out the wrong tooth by mistake since all the teeth that were missing in post service records are either in different parts of the mouth or are separated by other teeth. He did note that it is possible that the dentist may have extracted both the upper and lower left wisdom teeth and the dentist may have decided to extract them at separate times due to lack of hemostasis. Thus, the Board finds that the Veteran's assertion that an incorrect tooth was extracted during service is not credible and there is no other evidence of record that suggests an incorrect tooth was extracted during military service. The Veteran also contends that his current periodontal disease is related to herbicide exposure. The Board notes that herbicide exposure may be considered to be analogous to dental trauma, raising the possibility that the Veteran may be eligible for service-connected disability for VA outpatient treatment purposes based upon exposure to herbicide. The Veteran's DD Form 214 shows that he served in the Republic of Vietnam for 11 months between October 1965 and October 1967. As such, he may be presumed to have been exposed to herbicides in service. See 38 C.F.R. § 3.307(a)(6)(iii). However, the Veteran has not been diagnosed with a dental disability that is presumed to be related to exposure to an herbicide agent. Furthermore, the competent medical evidence of record does not show that the Veteran's periodontal disease was caused by or related to herbicide exposure in service. The Board notes that the Veteran contends that his current dental problems are related to the dental trauma of extracting a healthy tooth during military service and/or exposure to herbicides. However, the Veteran is not competent to provide statements and/or testimony regarding the etiology of his claimed dental disorder as this requires special medical knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007) ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."). The Veteran's statements that his current dental problems are related to active military service to include in-service dental trauma and herbicide exposure have no probative value because lay persons are not competent to offer medical opinions as to specific diagnoses or etiology that require special knowledge. Based on the foregoing, the Board finds that the preponderance of the evidence shows that the Veteran's current dental condition or disability is not the result of combat wounds or other service trauma. Accordingly, the Veteran does not meet the requirements of class IIa. Furthermore, the Veteran fails to establish eligibility for Class II(b), II(c), IIR, because he does not claim and the record does not show that he was ever a prisoner of war or that he filed a claim for dental treatment prior to the March 2006 claim. He does not meet the requirements of class III, because he does not have a dental condition or disability that has been medically determined to be aggravating a service-connected condition. The Veteran is not service-connected for any disability and therefore he is not in receipt of a 100 percent disability rating for a service-connected disability. Thus, the Veteran does not meet the requirements of class IV. The Veteran also fails to establish eligibility for Class V and VI treatment, as he does not claim and the record does not show that he participates in a rehabilitation program under 38 U.S.C. Chapter 31 or he is otherwise receiving care and services under 38 U.S.C. Chapter 17. See 38 C.F.R. § 17.161 (a). ORDER Entitlement to service connection for dental trauma for VA compensation and outpatient treatment purposes is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs