Citation Nr: 1334404 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 09-39 221 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for compensation purposes for a dental disorder. REPRESENTATION Veteran represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty from September 1961 to August 1965. This claim comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. The case is now under the jurisdiction of the Reno, Nevada, RO. In June 2010, the Veteran testified at a videoconference hearing before the undersigned. A transcript of the hearing is of record. This case was remanded for further development in February 2013. FINDINGS OF FACT 1. The Veteran received dental treatment in service, including the extraction of multiple teeth. 2. The Veteran does not have tooth loss resulting from loss of substance of the body of the maxilla or mandible. 3. The preponderance o the evidence does not indicate that in service trauma caused a loss of substance of the body of the maxilla or mandible, resulting in a loss of teeth, or that service related disease has caused a loss of substance of the body of the maxilla or mandible, resulting in a loss of teeth. CONCLUSION OF LAW The criteria for establishing service connection for compensation purposes for a dental disorder have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.381, 4.150 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issue decided herein. There is no issue as to providing an appropriate application or the completeness of the application. By correspondence dated in March 2009, VA advised the Veteran of the information and evidence needed to substantiate a claim. The letter provided notice of what part of that evidence is to be provided by the claimant, and what part VA will attempt to obtain. The Veteran was also provided information regarding the assignment of disability ratings and effective dates. VA has also satisfied its duty to assist. The claims folder contains service treatment records (STRs), VA medical records, VA examinations and identified private medical records. No additional pertinent records are shown to be available, and the appellant does not argue otherwise. The Board finds the 2012 and 2013 VA medical opinions adequate as together, they address the relevant questions, are based upon a review of the relevant evidence of record, and provide supporting explanations. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. No further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Accordingly, the Board will address the merits of the claim. This appeal was remanded by the Board in March 2012 and February 2013. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order). The remands requested that records be obtained and medical opinions provided. This development was completed. Accordingly, the Board finds that there has been substantial compliance with its previous remand and it may proceed to adjudication of this appeal. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand. Analysis The Veteran appeals the denial of service connection for a dental disorder. He contends that in 1963 he was attacked with a tire iron and kicked in the mouth, and that the cyst and infection caused by the attack led to his current dental problems. He expressed that he did not have any teeth pulled because of the attack but that some teeth were fractured. According to the Veteran, he did not seek treatment for his teeth until 2001 because he did not have dental insurance. Dental disabilities are treated differently than medical disabilities in the VA benefits system. See 38 U.S.C.A. § 1712; 38 C.F.R. §§ 3.381, 17.161. A claim for entitlement to service connection for a dental disorder for disability compensation is also considered a claim for entitlement to service connection for a dental disorder for purposes of VA outpatient dental treatment. Mays v. Brown, 5 Vet. App. 302 (1993). Here, service connection for a dental disorder for purposes of VA outpatient dental treatment has not been filed. The Veteran clarified his desire to file only a claim for compensation purposes in a March 2009 submission. VA regulations provide service connection for purposes of disability compensation for the loss of teeth due to the loss of the substance of body of the maxilla or mandible through trauma or disease. 38 C.F.R. § 4.150, Diagnostic Code 9913, Note. Otherwise, missing teeth are service connected solely for the purpose of establishing eligibility for VA outpatient dental treatment as they are not considered disabling conditions. 38 C.F.R. § 3.381(a) ; Byrd v. Nicholson, 19 Vet. App. 388, 394 (2005) (noting that VA eliminated conditions such as periodontal disease, carious teeth, and missing teeth from diseases generally eligible for VA compensation). Service connection for compensation purposes only can be established for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150, 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. See Simington 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. See Note to Diagnostic Code 9913, 38 C.F.R. § 4.150. The veteran must show that trauma has caused a loss of substance of the body of the maxilla or mandible, resulting in a loss of teeth, or that disease (such as osteomyelitis, but NOT periodontal disease) has caused a loss of substance of the body of the maxilla or mandible, resulting in a loss of teeth. The Veteran's STRs note that in May 1963 he was seen with enlarged swelling in the right zygoman area. A small cyst was noted. The treatment record notes that the Veteran had been struck in the face the week before, "causing a breakdown of the cyst wall structure." Hot compresses were used to reduce swelling "and what appeared to be infection." A January 1964 STR noted that the Veteran was seen after being involved in an altercation where he was struck in the face and possibly also kicked in the face. Examination showed right molar edema and ecchymosis. The nasal bones were markedly depressed. Facial, skull, and nasal X-rays showed a right molar fracture without apparent deformity and a depressed fracture of the nasal bones. STRs also note the extraction of tooth number 20 in October 1961; teeth numbers 2 and 19 in August 1963; tooth number 5 in September 1963; of tooth number 7 in June 1965; and of tooth number 15 in July 1965. The Veteran's service separation examination indicated that the following teeth were missing: 1, 2, 5, 7, 15, 19, 20, and 32. In August 2001, the Veteran was seen for an abscessed tooth. A June 2008 MRI showed anterior masses in the region of the alveolar ridge. This was consistent with cystic neoplasm, central necrosis, or abscess. In an August 2008 VA record, the Veteran reported intermittent pain, pressure, and multiple dental problems of his anterior maxilla. A 2008 CT scan showed discontinuity of bone in the maxilla. The assessment was maxillary cysts most likely secondary to chronic infection and trauma. It was explained to the Veteran in September 2008 that his remaining teeth needed to be extracted. In October 2008, the Veteran underwent excision of bilateral maxillary cysts and extraction of teeth roots 3, 6, 8, 9, 10, 12, and 14. In June 2010 VA treatment record, it was noted that there was a discussion of the implications of the Veteran's anterior maxillary bony destruction and the relationship to his maxillary teeth and loss thereof. The assessment was maxillary cyst leading to dental problems. The examiner noted that "there does appear to be a clear relationship between the maxillary cyst and dental attrition." During the April 2012 VA examination, the Veteran was diagnosed with complete edentulism. The examiner reviewed the claims folder and provided an opinion that the Veteran gradually lost his teeth over the course of the last 50 years through dental disease and did not have the financial resources to replace them with prostheses. The examiner indicated that the Veteran did not have the following conditions: anatomical loss or bony injury of the mandible, anatomical loss or bony injury of the maxilla, anatomical loss or bony injury leading to the loss of teeth, osteomyelitis, osteoradionecrosis/bisphosphonate-related osteonecrosis of the jaw, tumors, or neoplasms. Panagraphic imaging results were "normal film with a complete absence of teeth." The examiner opined that the claimed dental condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury. His rationale was that the extractions performed in 1963 and in 1965 appeared to be the result of dental disease documented on September 29, 1961 and not related to trauma. He commented that the cyst referred to in the May 1963 STR was a soft tissue cyst that was surgically removed on May 3, 1963 whereas the maxillary cyst found on the August 2008 CT scan was a hard tissue cyst and therefore not related. In the May 2013 addendum opinion, the VA examiner opined that it was less likely as not (less than 50 percent chance) that the tooth extractions done in 1963 were due to loss of substance of body of the maxilla or mandible without loss of continuity. He reasoned that the teeth extracted in 1963 and 1965 were all documented as having either dental caries or large preexisting dental restorations, and that there is no documentation of any service trauma or condition that involved the maxilla or mandible in any of the service treatment records. Therefore, he found that it was more likely that these teeth were lost to dental caries than any disease or condition affecting the maxilla or mandible. The examiner also found that the inservice 1964 X-ray was not significant or relevant to the Veteran's dental or oral status as it refers to a fracture of the nose and zygoma sustained by the Veteran during an altercation. The examiner opined that "molar" actually meant malar, which is a synonym for zygoma or cheekbone. The STRs, he stated, did not refer to treatment of a fractured molar tooth and had there been such a condition present one would expect to find a treatment note as to its disposition. The examiner noted that the August VA CT scan which showed two lucencies in the anterior maxilla and discontinuity of the bone in the maxilla is again not significant or relevant to the Veteran's dental or oral condition as there is no mention in the STRs of a maxillary lesion being present while the Veteran was in service. He further commented that the Veteran has a history of chronic sinus infection and cigarette smoking as evidenced by the VA treatment records which may account for his current sinus and maxillary bone related problems. Based on the evidence of record, the Board finds against the claim for service connection for a dental disorder. In this regard, dental problems are not shown in the record until over three decades after service. The passage of many years between discharge from active service and the medical documentation of a claim disability is a factor that weighs against a claim for service connection. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd sub nom., Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Additionally, while service treatment records reveal a cyst and the extraction of teeth 2, 5, 7, 15, 19 and 20, loss of substance of the body of the maxilla or mandible resulting in a loss of teeth is not shown by the record. The evidence is also against a finding that disease (such as osteomyelitis) has caused a loss of substance of the body of the maxilla or mandible, resulting in a loss of teeth. The Board recognizes that in a June 2010 VA treatment record the examiner noted that "there does appear to be a clear relationship between the maxillary cyst and dental attrition." The Board notes, however, that the May 2013 VA examiner found that the cyst referred to in the May 1963 STR was a soft tissue cyst that was surgically removed on May 3, 1963 whereas the maxillary cyst found on the August 2008 CT scan was a hard tissue cyst and therefore not related. The VA examiner further opined that it was less likely as not (less than 50 percent chance) that the tooth extractions done in 1963 were due to loss of substance of body of the maxilla or mandible without loss of continuity. Rather, the VA examiner expressed the opinion that the Veteran gradually lost his teeth over the course of the last 50 years through dental disease and the lack of financial resources to replace them with prostheses. The VA medical opinions provided in 2012 and 2013 are persuasive and are assigned significant probative weight. This is because the opinions were rendered by a medical professional with the expertise to opine on the matter at issue in this case. In addition, the examiner addressed the Veteran's contentions and based his opinion following a review of the relevant information in the claims folder, including STRs, as well as a complete examination. Furthermore, the examiner provided supporting explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that review of the claims file by a VA examiner, without more, does not automatically render the opinion persuasive, and conversely a private medical opinion may not be discounted solely for a lack of claims file review, because the central issue is whether the examiner was informed of the relevant facts in rendering a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). The Board does not assign significant weight to the June 2010 statement. In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). That medical practitioner provided no supporting explanation for the positive conclusion and did not appear to review relevant evidence in the claims file, such as the Veteran's STRs. To the extent that the Veteran asserts that his in service incident has contributed to his current dental disability, the Board notes that as a layperson the Veteran is competent to report tooth loss, injuries, and the circumstances surrounding such. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting that personal knowledge is knowledge acquired through the senses - that which the veteran heard, felt, saw, smelled, or tasted). The question of whether any inservice incident caused his current dental disability, however, is beyond the realm of the Veteran's layman's competence as it is not personally observable. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). As the Veteran is a layperson without the appropriate medical training or expertise, he is not competent to render probative (i.e., persuasive) opinions on this medical matter. In summary, the Veteran does not have a dental disability for VA compensation purposes. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) ; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for compensation purposes for a dental disorder is denied. ____________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs