Citation Nr: 1338882 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 10-38 908 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUE Entitlement to service connection for a dental disorder for compensation purposes. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD H. Seesel, Counsel INTRODUCTION 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). The Veteran had active service from June 1956 until April 1958. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from June 2007 and July 2009 rating decisions of the RO. The RO construed the claim as one involving the threshold question of whether new and material evidence had been submitted. However, a review of the record reflects that an earlier 1958 rating decision involved dental treatment, not service connection for a dental disorder for compensation. The June 2007 rating decision addressed the question of service connection for a dental disorder, to include for compensation; however, relevant lay statements were received within one year of the June 2007 rating decision. Applicable regulations provide that evidence received within the one year period prior to the decision becoming final is to be considered as having been received in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b) (2013). In such situations, the applicable rating action will not become final, and any subsequent decision based on such evidence will effectively be considered as part of the original claim. Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). As such, the June 2007 rating decision did not become final and the current appeal stems from both the June 2007 and July 2009 rating decisions. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). The Board also notes that a claim of service connection is also considered a claim for VA outpatient dental treatment. Mays v. Brown, 5 Vet. App. 302, 306 (1993). While the issue of service connection for a dental disability for treatment purposes only has been raised by the record, it is not currently ripe for adjudication. Specifically, the RO addressed both types of dental benefits in the June 2007 rating decision. As noted, however, new and material evidence was received within one year of that rating decision and it did not become final. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). The subsequent July 2009 rating decision and August 2010 Statement of the Case did not address the issue of service connection for a dental disability for treatment purposes. As such, the Board does not have jurisdiction and refers this matter to the RO for appropriate action. Specifically, the RO should refer the claim for dental treatment to the appropriate VA Medical Center. 38 C.F.R. § 3.381(d). The Virtual VA and VBMS folders have been reviewed. FINDING OF FACT The Veteran does not have a dental disability due to trauma for which compensation can be authorized. CONCLUSION OF LAW The criteria of service connection for a dental disorder for compensation purposes have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.381, 4.150 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) includes notice that a disability rating and an effective date for the award of benefits will be assigned if the claim is granted. In the present case, the letters sent to the Veteran in February 2007 and January 2009 fully addressed all notice elements. The claim was readjudicated in an August 2010 statement of the case. Accordingly, the duty to notify has been met. VA also has a duty to assist the Veteran in the development of the claim which includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the record includes the Veteran's service treatment records, VA outpatient treatment records, letters from private physicians, lay statements and the report of a VA examination. The Board notes that the April 2009 VA examination provided an opinion as to the etiology of the tooth loss that did not include a complete rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Given the above, the Board carefully considered whether a remand for an updated opinion to include a rationale was necessary. In this case, however, the issue being decided below involves a claim that cannot be substantiated as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); VAOPGCPREC 5-2004 (June 23, 2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim or assist in developing a claim that cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). As will be discussed in detail, the April 2009 VA dental examination includes findings that preclude a claim of service connection for dental trauma for compensation purposes. 38 C.F.R. § 3.159 (d) (noting VA will refrain from or discontinue providing assistance in obtaining evidence when the application indicates there is no reasonable possibility that assistance would substantiate the claim, including circumstances where the claimant is ineligible for the benefit sought because of lack of qualifying service, lack of Veteran status, or other lack of legal eligibility). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the appellant in the development of his claims. 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Law and Analysis The Veteran seeks service connection for a dental disorder. He asserts that an injury in service when he was kicked in the mouth by another service member wearing combat boots caused him to lose his teeth. Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Under current VA regulations, compensation is only available for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150 (2013), such as impairment or loss of the mandible, loss of a portion of the ramus, loss of the coronoid process, loss of the hard palate and impairment or loss of a portion of the maxilla. Compensation is available for loss of teeth only if such is due to loss of substance of body of maxilla or mandible due to trauma or disease such as osteomyelitis, but not periodontal disease. Otherwise, a Veteran may be entitled to service connection for dental conditions including treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease, for the sole purposes of receiving VA outpatient dental services and treatment, if certain criteria are met. 38 U.S.C.A. § 1712 (West 2002); 38 C.F.R. §§ 3.381, 17.161 (2012); Simington v. West, 11 Vet. App. 41, 44 (noting the distinction between replaceable missing teeth which can be service connected for treatment purposes only and teeth lost "as a result of 'loss of substance of body of maxilla and mandible' which can be assigned ratings anywhere from 0 to 100 % for compensation purposes"). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran's service treatment records show that he entered service with several gross cavities; however, he did not have any missing teeth. A review of the inservice dental treatment records indicate that teeth # 4 and 18 were extracted in July 1956. Teeth #3 and 13 were extracted in September 1956. Tooth # 15 was extracted in January 1958. The April 1958 separation examination reflected teeth # 1, 3, 4, 14, 15, 16, 18, 19, 20, 29, 30 and 31 were missing. The Veteran was afforded a VA examination in April 2009. The examiner reviewed the claims file and considered the Veteran's subjective history, including the assertions of sustaining an injury where he was kicked in the mouth. The Veteran reported that the blow caused displacement and loosening of the front teeth and the doctor forced the teeth back into position. He indicated he lost the remaining back teeth over the past 50 years. The examiner noted that, upon entrance, there were several gross dental caries. The July 1956 service record noted teeth 17, 19, 20, 29, 30, 31 were missing and teeth 3, 4, 18 were not restorable. He indicated that teeth 4, 18, 3, 15 were extracted during service and upper and lower partial dentures were inserted in March 1958. Upon release from service teeth # 1, 3, 4, 14, 15, 16, 18, 19, 20, 29, 30 and 31 were missing. The examination reflected that the Veteran had a loss of masticatory function due to the lack of posterior teeth. Teeth 1, 2, 3, 4, 13, 14, 15, 16, 17, 18, 19, 20, 29, 30, 31, 32 were missing and the remaining teeth were severely worn. Teeth 4 and 13 exhibited loss of periodontal support. The remaining teeth had good bone support with minimal probing depths. The Veteran was noted to have a full range of motion without symptoms, and x-ray studies showed loss of alveolar bone in the edentulous areas posterior all quadrants. After examination of the Veteran, the examiner concluded the Veteran's dental diagnosis was partially dentate with severe attrition of all remaining teeth. He opined the loss of teeth was less likely as not caused by the reported trauma the Veteran suffered when kicked in the mouth by someone wearing combat boots. The medical and lay evidence establish that the Veteran has missing teeth. The Board acknowledges that the Veteran sustained an injury during service. In spite of this injury, however, service connection for loss of teeth can be established for compensation purposes only if the loss is due to the loss of the body of the maxilla or mandible due to trauma or disease such as osteomyelitis. 38 C.F.R. § 4.150, Diagnostic Code 9913 (2013). No medical professional has provided any opinion that the Veteran experienced any loss of the body of the maxilla or mandible due to the in-service trauma that resulted in the loss of teeth. While the April 2009 VA examination reflected some alveolar bone loss, the examiner never indicated there was a loss of substance of the body of the maxilla or mandible. Moreover, the examiner did not relate the loss of any of the Veteran's teeth to trauma sustained in service. Accordingly, as the Veteran does not have loss of the substance of the body of the maxilla or the mandible due to dental trauma, service connection for compensation purposes must be denied. In reaching the conclusion 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); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER The claim of service connection for residuals of dental trauma for compensation purposes is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs