Citation Nr: 1333682 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 09-43 209 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for dental disability for compensation purposes. ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had active duty service from November 1988 to December 1991. This matter came to the Board of Veterans' Appeals (Board) from an August 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded in December 2012 for further development. A review of the record shows that the RO has complied with all remand instructions by providing notice, attempting to obtain outstanding VA treatment records, obtaining a VA medical opinion and issuing a supplemental statement of the case. See Stegall v. West, 11 Vet. App. 268 (1998). On his substantive appeal received in September 2009, the Veteran marked the appropriate box to indicate that he wanted a hearing before the Board at the RO. A hearing was scheduled for October 2012, but the Veteran failed to appear. To date, there have been no requests to reschedule. Although the appeal also originally included the issue of service connection for acquired psychiatric disorder, this benefit was granted by rating decision in August 2013 and is therefore no longer in appellate status. FINDING OF FACT The Veteran does not have loss of teeth as a result of loss of substance of the body of the maxilla or mandible. CONCLUSION OF LAW The criteria for entitlement to service connection for a dental disability for compensation purposes have not been met. 38 U.S.C.A. § 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 4.150 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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) (2013). Duty to Notify Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection 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 v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by a letter dated in March 2008. The RO provided the appellant with additional notice in February 2013, subsequent to the initial adjudication. The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. While the February 2013 notice was not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claim was subsequently readjudicated in an August 2013 supplemental statement of the case, following the provision of notice in February 2013. Although both notices did not provide the Veteran with the laws and regulations governing the dental conditions for which VA compensation benefits are available, pursuant to 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916, the Veteran has not been prejudiced as a result. Here, he was provided a thorough examination in August 2008 that ruled out all the compensable diagnoses. This conclusively shows that the Veteran does not meet the requirements for service connection for dental disability for compensation purposes. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist VA has obtained service and VA treatment records, reviewed the Veteran's Virtual VA file and VBMS file, assisted the Veteran in obtaining evidence, afforded the Veteran a VA examination in August 2008, obtained a VA medical opinion in August 2013, and afforded the Veteran the opportunity to give testimony before the Board. On a form received in September 2013, the Veteran indicated by signature that he had no additional evidence to submit and to have his case submitted to the Board. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Laws and Regulations The issue before the Board involves a claim of entitlement to service connection dental disability for compensation purposes. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Under current VA regulations, service connection for VA compensation purposes is only available for specified dental and oral conditions which are specifically delineated in 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916, and include chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible (Diagnostic Code 9900). Compensation is also available for loss of teeth but only if such loss is due to loss of substance of body of maxilla or mandible due to trauma or due to disease such as osteomyelitis, but not due to the loss of the alveolar process as a result of periodontal disease. See 38 C.F.R. § 4.150 , Diagnostic Code 9913, Note (2011). The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). 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. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). Analysis As noted in the December 2012 Board remand, an August 2009 rating decision granted service connection for treatment purposes, but did not adjudicate whether service connection for a dental disability for compensation purposes was warranted. The Board notes that 38 C.F.R. § 4.150 applies to dental claims. Diagnostic Code 9913 allows for compensation only for loss of teeth due to loss of substance of the body of the maxillary or mandible due to trauma or disease. In Nielson v. Shinseki, the U.S. Court of Appeals for the Federal Circuit held that service trauma in a dental context means "an injury or wound produced by an external physical force during the service member's performance of military duties" and does not include "the intended result of proper medical treatment." Nielson v. Shinseki, 607 F.3d 802, 808 (Fed. Cir. 2010). On a claim received in December 2007, the Veteran stated that he had caused nerve damage to tooth #8 after a "hard landing" from a parachute jump in service. He stated that the January 1990 injury caused nerve damage that caused the "tooth to die and eventually fall out." Dental health records show various entries for treatment of tooth #8. The first occurred in January 1990 when the Veteran stated "I chipped my tooth in Panama." It was noted that "PNI [peripheral nerve injury] portion of existing composite #8 missing." A periapical x-ray (PAX) was ordered and taken. A March 1990 examination showed that #8 tooth was chipped. In May 1991, the Veteran complained of pain on anterior teeth. A PAX was ordered. The dentist diagnosed "necrotic pulp #8; Class II mobility; swelling...RCT [root canal therapy] #8 required." The entry for the following day noted "interim endo-ablation" and "final endo #8 ordered." A September 1991 noted "Do not rec crown #8 at this time. Need access prep filled." In October 1991 a bite wing x-ray was done. The last dental entry was from November 1991 and the Veteran failed to make the appointment. A November 1991 exit examination shows that dental portion was left blank. There were no notations made. There were also no notations provided in the notes section. As for summary of defects and diagnosis, only defective visual acuity was noted. In his contemporaneous medical history, the Veteran marked the appropriate box to deny a past/current history of severe tooth or gum trouble. In the Physician's summary, only myopia and bilateral knee injury was noted. Post service, the Veteran was afforded a VA examination in August 2008. The examiner noted that the Veteran had documentation that on August 1989, he was hit in the mouth and had a class II fracture of tooth #8. The examiner noted that there was no line of duty injury statement found. She further noted that the Veteran had documentation that endodontic was performed on that same tooth in May 1991. The examiner noted no further documentation of the Veteran having problems with the tooth. It was noted that the Veteran had the tooth restored 17 years ago and since then there is evidence of recurrent decay with a fractured off crown with nonrestorable prognosis. The Veteran admitted not seeing a dentist in 17 years. Upon physical examination, the examiner noted no loss of bone of the maxilla, malunion/nonunion of the maxilla, loss of bone of the mandible, nonunion/malunion of the mandible. She further noted no loss of motion at the temporomandibular articulation, no loss of bone of the hard palate, and no evidence of osteoradionecrosis and osteomyelitis. The examiner noted no tooth loss due to loss of substance of body of maxillary or mandible. The examiner further noted that palpation and percussion elicited no pain. The examiner noted that x-ray results showed the tooth had endodontic procedure removing the nerve tissue and filling with endodontic material. She noted recurrent decay and periapical radiograph showing moderate to severe decay and a non-restorable tooth. The examiner diagnosed non vitral endo tooth with recurrent decay. She noted that the Veteran claims nerve damage and esthetics for tooth #8. When asked for an opinion as to whether it is related to service, she noted that it is less likely as not caused by or a result of service she stated that the tooth was treated 17 years ago and the Veteran had not visited a dentist since the tooth has evidence of recurrent decay and neglect. She noted that it appears that the decay played a major role in the destruction of the tooth. She noted no nerve damage since the nerve was removed during endo procedure. A December 2009 VA treatment record shows trauma to tooth #8 twenty years ago. It was noted that he presented with fracture of #8 endo treated tooth. The prognosis was hopeless. It was observed that he had a very deep bite and crowding of anterior teeth #8 and #9. A June 2013 dental consultation note shows that the Veteran was seen for a limited oral evaluation. The Veteran stated that he was missing his front tooth. Dental examination showed he was missing tooth #8. The assessment noted that no urgent dental needs or acute dental infections were noted on examination. No treatment was required at the time. An August 2013 VA medical opinion noted periapical radiograph taken of edentulous space #8 revealed no root or clinical crown. The claims file was reviewed in its entirety. The examiner noted a June 2010 extraction of tooth #8 due to recurrent caries and fracture of an endodotically treated #8 per dental progress note. He noted that currently, the extraction site is well healed with no excessive loss of osseous structure, no loss of substance of the body of maxilla or mandible or of the soft tissues surrounding this area. He noted that an August 1989 dental progress note shows that the Veteran had "Hit front tooth yesterday. Class II fracture." The Veteran was warned to watch for signs of pulp degeneration. The examiner noted a January 1990 service treatment record in which the Veteran presented for repair of #8 mesial incisal portion of restoration. In March 1990, a repair was again performed. In May 1991 the Veteran presented with chief complaint of pain on anterior teeth. Periapical radiograph showed necrotic pulp and a pulpectomy was performed. Endodontic obsturation was completed in May 1991. In September 1991, prosthodontic was performed in which it was not recommended to have a crown placed, but was identified to have the endodontic access prep filled. In October and November 1991, the Veteran failed his operative appointments. As for post service records, the examiner noted a September 2008 VA treatment record that showed the Veteran had his tooth restored 17 years prior and since then, there was recurring decay with fractured off crown with nonrestorable prognosis. The Veteran admitted not seeing a dentist in 17 years. Based on the foregoing and the August 2009 rating decision, the examiner opined that the fracture of tooth #8 had its onset in service and is related to the Veteran's military service (based on dates of treatment and outcome of treatment). He noted that the Veteran is currently service-connected for dental treatment for loss of tooth #8. However, service connection for compensation purposes is not warranted. The Board acknowledges that service connection for dental treatment purposes was granted for tooth #8 due to trauma (as noted by rating decision in August 2009). The Board acknowledges two in-service incidents that the Veteran has reported caused trauma to the tooth (the Veteran being punched in the mouth in 1989 and a parachute injury in January 1990) and in-service treatment. However, the medical evidence shows that the trauma did not result in any loss of substance of body of maxilla or mandible. Service treatment records show a chip tooth and no indications of loss of substance of body of maxilla or mandible. On separation examination in November 1991, no dental disorders were noted, and on a November 1991 report of medical history, the Veteran marked the appropriate box to deny severe tooth and gum trouble, and there were no indications of any tooth disorders. Post service treatment records show no medical evidence of any loss of substance of body of maxilla or mandible. The VA examiner in August 2008 confirmed this. The Board notes that there is no medical evidence to the contrary and the Veteran has never claimed such. He has only claimed a missing tooth caused by nerve damage. In the absence of any current compensable dental disability, service connection for a dental condition for compensation purpose cannot be granted. After thorough review of the evidence currently of record, the Board is led to the conclusion that there is not such a state of equipoise of the positive evidence with the negative evidence to permit a favorable determination in this case. 38 U.S.C.A. § 5107(b). The weight of the evidence is against the Veteran's claim. ORDER Entitlement to service connection for dental disability for compensation purposes is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs