Citation Nr: 1336676 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 11-24 836 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to service connection for a dental disability, to include for outpatient treatment purposes. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran served on active duty from January to May 1988, and from December 1990 to June 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. In this decision the RO denied service connection for "dental trauma." As such, the issue has been recharacterized as noted on the title page above. See Mays v. Brown, 5 Vet. App. 302 (1993) (a claim for service connection for a dental disorder is also a claim for VA outpatient dental treatment under 38 C.F.R. § 3.381 (2013)). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran asserts that his currently-claimed dental condition is a result of residual problems which followed the removal of a tooth shortly after his June 1991 service discharge. The tooth number has not been specifically identified by VA in the course of this appeal. In a statement which he submitted by email in December 2009, he appears to be raising a claim for additional VA treatment. He noted that he had been provided treatment previously, but his tooth had simply been removed, leaving an empty void. He further stated that a representative advised him the VA owes him that tooth. In this case, the RO explicitly adjudicated, and denied, the claim for entitlement to service connection for a dental disability for purposes of compensation, but did not explicitly address, the claim for entitlement to service connection for a dental disability for purposes of VA outpatient treatment purposes. An undated letter from the RO to the Veteran indicates that the Veteran's request for dental treatment had been forwarded to the VA Medical Center in Manchester, however, the Board is unable to determine what action, if any was taken on that claim. A subsequent Statement in Support of Claim filed in March 2010 by the Veteran's representative indicates that the claim was not "originally" filed to seek dental treatment, but strictly to pursue service connection for this condition. The Board notes that this statement seems to be at odds with the above referenced email from the Veteran in which he appeared to be seeking a replacement for his missing tooth. In the rating decision dated in July 2010, the RO denied service connection for dental trauma. The decision noted that dental conditions may be rated for treatment purposes only unless they are caused by trauma or if the condition in rare cases causes loss of the bone or multiple teeth. The Veteran testified at a hearing held at the RO in August 2011. At that time, he was advised that the RO would obtain his VA dental treatment records. Instead, however, his claim was denied in a statement of the case issued in September 2011. Effective February 29, 2012, VA amended its adjudication regulations regarding service connection of dental conditions for treatment purposes under 38 C.F.R. § 3.381. The amendments clarify existing regulatory provisions and reflect the respective responsibilities of the Veterans Health Administration (VHA) and the Veterans Benefits Administration (VBA) in making determinations that concern eligibility for dental treatment, including that VBA will adjudicate a claim for service connection of a dental condition for treatment purposes after VHA determines a veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161 and requests VBA make a determination, as to certain listed questions, including whether the veteran has a compensable or noncompensable service-connected dental condition or disability, whether the dental condition or disability is a result of combat wounds, and whether the dental condition or disability is a result of service trauma. See Final Rule, Dental Conditions, 77 Fed. Reg. 4469 (Jan. 30, 2012). The adjudication of the dental treatment issue needs to be accomplished with consideration of the VBA and VHA policy. See M21-1R, Part III, Subpart v., Chapter 7, Section C, and M21-1R, Part IX, Subpart ii, Chapter 2, Section 2, pertaining to the processing and rating of dental claims; see also VBA Fast Letter 10-42 (Guidance on Rating Dental Conditions), dated in October 2010. These manual provisions and Fast Letter direct that an RO is not to adjudicate a claim for service connection for a dental condition for treatment purposes in the first instance in most cases. Such a claim, instead, is to be referred to a VHA facility for that administration to make a determination of eligibility in the first instance. The VHA facility is also responsible for notifying the Veteran of any decision. There is a specific process to be followed should the VHA facility require assistance from VBA in providing additional information in order to make a decision. In any event, the initial determination is to be made by the VHA facility. Although the RO did not explicitly adjudicate the claim for service connection for a dental disability for purposes of VA outpatient dental treatment, the Board finds that remand, rather than referral, is appropriate here. A remand with instructions to the RO to refer the claim to the VHA, which the regulation provides must make the initial determination on the claim, will better ensure that the claim is addressed promptly and efficiently and is therefore consistent with the uniquely pro-claimant principles underlying the veterans' benefits system. Nat'l Org. of Veterans Advocates, Inc. v. Sec'y of Veterans Affairs, 710 F.3d 1328, 1330 (Fed. Cir. 2013). The Board also notes that the Veteran has claimed that he had a tooth extracted by VA following his June 1991 service separation. While the record shows that he claims to have been afforded VA dental treatment - including recently -- at the Manchester VA Medical Center (VAMC) (see November 2009 VA Form 21-4138), and while it appears that a July 2010 search for such records was unsuccessful, the Board observes that the record is essentially devoid of post service VA dental records. The Board does note the presence of an August 1991 record which has been included within the Veteran's claims folder. That record suggests that the Veteran was referred for fee basis treatment. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). Also, in the course of his August 2011 personal hearing conducted at the RO by a Decision Review Officer, the Veteran testified that, in his capacity as an employee with the state of New Hampshire, he was afforded dental work, in the form of routine cleanings every six months as well as any work which needed to be done (such as repeated cavities and other areas). These dental records have not been associated with the Veteran's claims folder. As this case needs to be remanded anyway, another effort should be undertaken to obtain any outstanding VA dental records, as well as to obtain the above-cited records from the state of New Hampshire. As these VA and private medical records may contain information critical to the matter at hand, 38 C.F.R. § 3.159(c) (2013) mandates that VA assist in obtaining such records. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should seek to obtain all VA dental records associated with treatment afforded the Veteran since June 1991, to include those at the Manchester, New Hampshire VAMC and any fee basis treatment records. All efforts to obtain these records should be fully documented, and VA should provide a negative response if these records are not available 2. The RO/AMC should seek to obtain all medical records associated with dental treatment provided the Veteran in his capacity as an employee of the state of New Hampshire. To assist in acquiring these sought after state medical records, the RO/AMC should provide the Veteran with a VA Form 21-4142 (Authorization and Consent to Release Information). All efforts to obtain these records should be fully documented, and New Hampshire should provide a negative response if these records are not available. 3. The RO/AMC should refer the Veteran's dental claim for outpatient treatment purposes to a VHA facility for that administration to make a determination of eligibility in the first instance as outlined in M21-1R, Part III, Subpart v., Chapter 7, Section C, and M21-1R, Part IX, Subpart ii, Chapter 2, Section 2, pertaining to the processing and rating of dental claims; see also VBA Fast Letter 10-42 (Guidance on Rating Dental Conditions), dated in October 2010. 4. The RO/AMC should then readjudicate the claim on appeal, including reviewing all newly obtained evidence and completing any additional development deemed necessary. If any benefit sought on appeal remains denied, the appellant and the appellant's representative should be provided a Statement of the Case that contains a summary of the evidence and applicable laws and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter 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 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). _________________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).