Citation Nr: 1334911 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 09-06 740 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for residuals of dental trauma. ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty in the US Army from April 1951 to April 1954. Included in the three years of service was duty in the Republic of Korea where the Veteran earned the Combat Infantryman's Badge (CIB). It is noted that the Veteran has dementia and that his daughter holds power of attorney. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of August 2007 of the Department of Veterans Affairs (VA) Regional Office in Chicago, Illinois. In July 2009, December 2010, and again in February 2012, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. The Board notes that the Veteran's claims file contains a VA Form 21-22, designating Veterans of Foreign Wars as his representative. However, in February 2010, the Board received a memorandum, indicating that Kathleen McConnell, his daughter, was representing him in this appeal. However, the claims file did not contain a VA Form 21-0845, Authorization to Disclose Personal Information to a Third Party to allow his daughter to receive correspondence on his behalf. Accordingly, in a July 2013 letter, the Board wrote the Veteran and asked that he clarify his wishes regarding representation. He was told that if he did not respond within 30 days, the Board would assume that he wanted to represent himself, and would proceed pro se. He did not respond to that letter. Thus, absent completion and submission of the required paperwork to officially designate his daughter as his representative of record in this appeal, or some other Veterans Service Organization (VSO), agent or attorney, the Board must presume he is unrepresented in this appeal. 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). FINDING OF FACT The Veteran's tooth loss is not due to loss of the body of the maxilla or mandible (bone loss), and he does not meet the requirements for service connection for the limited purpose of receiving VA outpatient treatment. CONCLUSION OF LAW The criteria for entitlement to service connection for a dental disorder, for purposes of both compensation and VA outpatient treatment, have not been met. 38 U.S.C.A. §§ 1110, 1131, 1721 (West & Supp. 2011); 38 C.F.R. §§ 3.303, 3.381, 4.150, 17.161 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011) defined VA's duty to assist a Veteran 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, 3.326(a) (2012). Under the VCAA, 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. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a claim. Those five elements include: 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). In this case, the Veteran was provided with notice fulfilling the requirements of 38 C.F.R. § 3.159(b), including notice regarding the disability-rating and effective-date elements of the claim, in August 2006, July 2009, February 2010, March 2010, December 2010, December 2011, and February 2012 letters. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini II, 18 Vet. App. at 119-120. While complete VCAA notice was provided after the initial adjudication of the claim, this timing deficiency was remedied by the issuance of VCAA notice followed by readjudication of the claim. Mayfield v. Nicholson, 444 F. 3d 1328 (Fed. Cir. 2006). The claim was readjudicated in the October 2012 supplemental statement of the case. Therefore, any timing deficiency was remedied. The Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records and VA treatment records, and the Veteran was afforded VA dental examinations in April and December 2010. The Board remanded the claim in December 2010 to ensure that the Veteran had been provided adequate notice regarding his dental disability claim, and to afford him a VA examination with an adequate opinion. The Veteran was afforded an adequate VA examination in December 2010, and he was provided with the required VCAA notice in March 2012. The remand instructions were thereby complied with. Stegall v. West, 11 Vet. App. 268 (1998). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Legal Criteria 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, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, No. 2009-7075 (Fed. Cir. Sept. 14, 2009). "[L]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between 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"). With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestation of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Veteran contends that during active duty in Korea, during the Korean Conflict, a tank he was riding on hit a land mine, causing several of his teeth to either fall out or become loose. The Veteran also reported that a field doctor removed the loose teeth that did not fall out during the blast, and eventually, he had to have all of his remaining teeth pulled out and replaced with dentures. Service connection for a dental disorder for compensation purposes can only be established for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150 (2012), 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 Simmington v. West, 11 Vet. App. 41 (1998). For loss of teeth to merit compensation, 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 38 C.F.R. § 4.150, Diagnostic Code 9913, at Note. Service treatment records show that at the time of his enlistment examination in April 1951, he was missing teeth 17, 19, and 32. At the time of his discharge in April 1954, he was noted to be missing teeth 7, 9, 13, 16, 17, 19, 29, and 32. A treatment note from October 1951 shows that tooth number 9 was extracted at that time due to an abscess. July 1951 notes show that the Veteran had restorative treatment to teeth 4, 6, 7, 9, 10, 14, 15, 1, and 30, and that he was to have a removable partial denture made. An August 1951 note indicates that the Veteran's denture was lost in route to the clinic, but the dentist found that the patient had sufficient teeth to get by without the denture. The Veteran's April 1954 discharge examination notes that tooth number 8 was restorable, which indicates that there was some problem with the tooth at that time, and he was listed as a Class III, which meant that he had existing dental needs that could become problematic in less than twelve months time. The exact nature of the problems was not noted. The Veteran was afforded a VA examination in April 2010, in response to his claim. Because he has Alzheimer's, his daughter, who as noted above, has power of attorney, accompanied him to the examination. The Veteran's daughter reported that although she didn't know much about the Veteran's dental problems in the 1950's, she did remember that he had complete dentures since she was a small child, at least since around 1960. On physical examination, the Veteran had a complete set of dentures. The upper denture was stable, but no retentive, while the lower denture was loose and non-retentive, causing him trouble with eating, according to his daughter. The examiner also noted that the Veteran was completely edentulous (toothless), both in maxilla and mandible, and his teeth were replaced by upper and lower dentures. There was no limitation of motion of the jaw, but the Veteran had extensive bone loss in the anterior mandible, from area of first premolar on the right side to first premolar on the left side, and his ridge was not adequate for denture support and retention. The examiner opined that the Veteran's loss of anterior bone and ridge form in the mandible was a result of supporting a lower denture for at least 40 to 50 years. In accordance with the Board's remand, the Veteran was afforded another VA examination in December 2010. It was noted again that the Veteran had full maxillary and mandibular dentures. On physical examination, there was no loss of bone of the maxilla; no malunion or nonunion of the maxilla; no loss of bone of the mandible; no nonunion or malunion of the mandible; no limitation of motion at the temporomandibular articulation; no loss of bone at the hard palate; no osteoradionecrosis; no osteomyelitis; and no tooth loss due to loss of substance of the body of the maxilla or mandible other than loss due to periodontal disease; and no speech difficulty. The examiner opined that the Veteran's noted bone loss was due to years of denture use and not to trauma or disease in combat. His rationale was that although there was evidence of trauma in service, there is no evidence that there was any bone loss. There is no contradictory medical opinion of record. Having reviewed the complete record, the Board finds that there is no basis for granting service connection for the Veteran's dental disorder, including missing teeth, for the purpose of receiving disability compensation. In this regard, as noted above, the Veteran was awarded the Combat Infantryman Badge, and therefore, his participation in combat is conceded. Therefore, the Board finds that his reports of dental trauma in service are credible and consistent with the circumstances of his service, and concedes that he may have had tooth loss in service, due to his reported trauma. However, the evidence does not show, that he also has bone loss (loss of substance of the body of the maxilla or mandible) as a result of his in-service trauma and resulting tooth loss, as is required for compensation under Diagnostic Code 9913. In this regard, during his April 2010 VA examination, the examiner found that the Veteran did have bone loss, however; he ultimately concluded that the bone loss was due to periodontal disease and years of denture use. See April 2010 VA examination report. There is no other evidence showing that the Veteran has bone loss in addition to tooth loss, as a result of trauma in service or a disease such as osteomyelitis. Accordingly, compensation under Diagnostic Code 9913 is still not warranted in this case. Under the circumstances, service connection for the Veteran's dental disorder/condition for compensation purposes must be denied. Notwithstanding the aforementioned, the Veteran may be entitled to service connection for the purpose of receiving VA outpatient dental treatment where he or she qualifies under one of the categories outlined in 38 U.S.C.A. § 1712(b) and 38 C.F.R. § 17.161, such as Veterans having a compensable service-connected condition (Class I eligibility); Veterans having a noncompensable service-connected dental condition, provided that they apply for treatment within a certain period after service (Class II eligibility); and those having a noncompensable service-connected dental condition adjudicated as resulting from a combat wound or other service trauma (Class II(a) eligibility). 38 U.S.C.A. § 1712 (West 2002); 38 C.F.R. § 17.161 (2012). The provisions of 38 U.S.C.A. § 1712(a)(1) provide that outpatient dental services and treatment, and related dental appliances, shall be furnished for dental condition or disability which: (A) is service connected and compensable in degree; or (B) is service connected, but not compensable in degree, if: (i) the dental condition or disability is shown to have been in existence at the time of the Veteran's discharge or release from active military, naval, or air service; (ii) the Veteran had served on active duty for a period of not less than 180 days, or in the case of a Veteran who served on active duty during the Persian Gulf War, 90 days immediately before such discharge or release; and (iii) application for treatment is made within 90 days after such discharge or release, except that (1) in the case of a Veteran who entered active military, naval, or air service within 90 days after the date of such Veteran's prior discharge or release from service, application may be made within 90 days from the date of such Veteran's subsequent discharge or release from such service, and (2) if a disqualifying discharge or release has been corrected by competent authority, application may be made within 90 days after the date of correction; and the Veteran's Certificate of Discharge or release from active duty does not bear a certification that the Veteran was provided, within the 90-day period immediately before the date of such discharge or release, a complete dental examination (including dental X-rays) and all appropriate dental services and treatment indicated by the examination to be needed. (C) Is a service connected dental condition or disability due to combat wounds or other service trauma, or of a former POW; (D) is associated with and is aggravating a disability resulting from some other disease or injury which was incurred in or aggravated by active military, naval, or air service; (E) is a non-service-connected condition or disability of a Veteran for which treatment was begun while such Veteran was receiving hospital care under this chapter and such services and treatment are reasonably necessary to complete such treatment; or where (F) the Veteran is a former POW who was detained or interned for a period of not less than 90 days; (G) the Veteran has a service-connected disability rated as total; or where (H) the dental treatment is medically necessary (i) in preparation for a hospital admission, or (ii) for a Veteran otherwise receiving care or services under this chapter. 38 U.S.C.A. § 1712 (West 2002). The evidence does not show that the Veteran meets any of the categories of eligibility of 38 U.S.C.A. § 1712(b) and 38 C.F.R. §17.161. For example, he is not service-connected for any dental disability; he does not have a dental disability that is associated with and is aggravating a disability resulting from some other disease or injury which was incurred in or aggravated by active military service; he was not being treated for his missing teeth while he was receiving hospital care; he is not a former POW; he does not have a service-connected disability rated as total; and there is no evidence that he has dental treatment that is medically necessary. Based on the foregoing, the Board finds that service connection for residuals of dental trauma for the purpose of obtaining VA outpatient dental treatment is not warranted. Accordingly, the Board must conclude that the preponderance of the evidence is against the Veteran's claim. Reasonable doubt does not arise, and the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002). ORDER Service connection for residuals of dental trauma is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs