Citation Nr: 1338774 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 08-06 816 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for residuals of loss of teeth due to periodontitis, to include as secondary to the service-connected residuals of a fractured jaw. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran served on active duty from December 1976 to June 1982. This appeal comes to the Board of Veterans' Appeals (Board) from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The appeal was most recently remanded by the Board in June 2011 to obtain any outstanding medical records and afford the Veteran an examination. In October 2011, the RO asked him to identify any health care providers who have treated his periodontitis. He replied that he has received all his treatment from the Miami VA Medical Center (VAMC). The RO obtained records from the Miami VAMC. The RO afforded the Veteran an examination in April 2012. Although the examination was not conducted by a new examiner, as requested by the Board, the report of that examination is responsive to the remand directives. In addition, the Board did not indicate in the remand any particular reason for the need for a different examiner, such as bias on the part of the prior examiner. Thus, the Board finds that there has been substantial compliance with the remand directives. See Dyment v. West, 13 Vet. App. 141 (1999). Moreover, the Board finds no prejudice to the Veteran in using the examination report. See Bernard v. Brown, 4 Vet. App. 384 (1993). FINDINGS OF FACT 1. Loss of teeth due to periodontitis is not a disability for VA compensation purposes. 2. Loss of teeth due to periodontitis was not proximately due to, the result of, or aggravated by the service-connected residuals of a fractured jaw. CONCLUSION OF LAW The criteria for service connection for residuals of loss of teeth due to periodontitis, to include as secondary to the service-connected residuals of a fractured jaw, have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant and his or her representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b) (2013); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran was notified in a November 2006 letter of the criteria for establishing direct and secondary service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. That letter addressed all notice elements and predated the initial adjudication by the RO in April 2007. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). In this case, all necessary development has been accomplished and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, and post-service reports of VA treatment and examination. The Veteran's statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the claim. VA provided the Veteran with an examination in June 2010 to determine the nature and etiology of his disability. 38 C.F.R. § 3.159(c)(4) (West 2002 & Supp. 2013). As the Board found the report of that examination to be incomplete, the Board requested another examination, which was provided in April 2012. The Board finds the report of that examination to be thorough and adequate upon which to base a decision on the claim. The VA examiner interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information needed to decide the claim. A brief but relevant opinion was provided. The Board finds the opinion to be adequate, as it was based on a full reading of the records in the claims file and the Veteran's own statements. The Board finds that no further notice or assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). 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) (2013). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). VA's Schedule for Rating Disabilities provides compensable disability ratings for the loss of teeth due to the loss of substance of the body of the maxilla or mandible. See 38 C.F.R. § 4.150, Diagnostic Code 9913 (2013). It is noted that these ratings apply only to bone loss through trauma or disease such as osteomyelitis and not to the loss of the alveolar process as a result of periodontal disease. VA law provides that treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease will be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment, and rating action should consider each defective or missing tooth and each disease of the teeth and periodontal tissues separately to determine whether the condition was incurred or aggravated in line of duty during active service and, when applicable, to determine whether the condition is due to combat or other in-service trauma, or whether the veteran was interned as a prisoner of war. 38 U.S.C.A. § 1712 (West 2002 & Supp. 2013); 38 C.F.R. § 3.381 (2013). Service connection may also be granted for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (2013). Service connection is permitted not only for a disability caused by a service-connected disability, but also for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). In this case, the Veteran essentially contends that his dental problems, including loss of teeth and periodontitis, are due to his service-connected jaw fracture disability, which resulted from trauma he sustained during active service. The service treatment records show a history of a mandible fracture in 1980 but no details or the actual treatment report is of record. The service dental records do not show any mandible fracture or periodontitis. During a February 1996 VA examination, the Veteran reported being punched in the jaw during service, resulting in the jaw being broken in two places. He noted that the jaw was wired for several months and apparently healed without incident. Examination revealed no residuals from the jaw fracture. A July 1998 VA dental examination found no evidence of any damage to the jaw but there was an abscess of tooth number 3, class III mobility of tooth number 7, and that tooth number 9 had undergone a root canal. An October 2002 VA dental examination found advanced periodontal disease consisting of bone loss around the maxillary mandibular dentition but no evidence of osteolytic changes to support the diagnosis of acute or chronic osteomyelitis or chronic infections related to mandibular or maxillofacial fracture. A March 2007 VA dental treatment note shows that the Veteran had advanced periodontitis, pus, and class III mobility. The Veteran underwent a VA dental examination for his claim in June 2010. However, as the report of that examination was incomplete, the Board requested another examination. An April 2012 VA dental examination report reflects the examiner's review of the claims file, highlighting 1981 x-rays showing a full set of teeth and no evidence of fracture or advanced periodontal disease and 1998 x-rays showing 28 teeth and no evidence of fracture. The examiner noted that most of the Veteran's teeth were extracted in 2009 due to poor oral hygiene and severe periodontal disease. The examiner stated that jaw fractures do not cause periodontal disease and that there is no correlation between the Veteran's loss of teeth due to periodontal disease and his jaw fracture. The examiner then concluded that the Veteran's loss of teeth was not caused by, a result of, or aggravated by his jaw fracture. Initially, the Board notes that service connection is not warranted for loss of teeth as a result of periodontal disease. The record in this case shows that the Veteran's loss of teeth has been attributed to periodontal disease. Thus, his loss of teeth due to periodontitis is not a disability for VA compensation purposes. Turning to the Veteran's contention, a VA examiner opined that the Veteran's loss of teeth was not caused by, a result of, or aggravated by his jaw fracture. That is the only competent, probative medical opinion of record and unfortunately it is against the claim. A reasonable rationale was also provided in support of the examiner's opinions and there is no medical opinion of record that contradicts the opinions of this examiner. Thus, the Board finds that the Veteran's loss of teeth due to periodontitis was not proximately due to, the result of, or aggravated by the service-connected residuals of a fractured jaw. The Board notes that a lay person is competent to address etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, however, the question of causation extends beyond an immediately observable cause-and-effect relationship. As such, the Veteran is not competent to address etiology. As discussed above, the medical evidence shows that his disorder is not related to the service-connected residuals of a fractured jaw. In conclusion, service connection for residuals of loss of teeth due to periodontitis, to include as secondary to the service-connected residuals of a fractured jaw, is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for residuals of loss of teeth due to periodontitis, to include as secondary to the service-connected residuals of a fractured jaw, is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs