Citation Nr: 1339050 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 09-35 214 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for periodontal disease. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from January 1975 to January 1977, and from September 1977 to September 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Board has reviewed the Veteran's physical claims file, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. In August 2009, the Veteran requested a personal hearing before the Board in connection with the appeal; however, on the day of the scheduled hearing, the Veteran wrote that he was unable to attend the Board hearing and did not want to reschedule. He further asked that the appeal be sent to the Board for review. See August 2012 letter from the Veteran. Therefore, the Veteran's hearing request has been withdrawn. 38 C.F.R. § 20.704(e) (2013). In January 2013, the Board remanded the issues of service connection for a right finger disability, a disability manifested by syphilis, venereal disease, genital warts, and herpes, hemorrhoids, status-post circumcision including genital warts, and periodontal disease in order to obtain additional treatment records, to attempt to obtain the Veteran's complete service treatment records (STRs) from his first period of active service, and to provide the Veteran with VA medical examinations. The Board ordered readjudication of the claims after the ordered development was accomplished. The case now returns to the Board after substantial compliance with the prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). In a September 2013 rating decision, service connection was established for right little finger strain, residuals of syphilis/gonorrhea, venereal disease, genital warts, and herpes, status post circumcision secondary to genital warts, and hemorrhoids, with noncompensable initial ratings effective May 22, 2007. Because those issues have been granted, they are no longer before the Board. The issue of service connection for periodontal disease for treatment purposes has been raised by the record. See Mays v. Brown, 5 Vet. App. 302, 306 (1993) (a claim for service connection is also considered a claim for VA outpatient dental treatment). Because the issue has not yet been adjudicated by the appropriate VA Medical Center (VAMC), the Board does not have jurisdiction over it, and it is REFERRED for appropriate action. FINDINGS OF FACT 1. There was no dental trauma during service. 2. The Veteran did not have periodontal disease or symptoms related thereto during service. 3. The Veteran received routine dental treatment during active service. 4. The Veteran currently has periodontal disease. 5. Compensation is not available for periodontal disease and residuals related thereto under VA regulation. CONCLUSION OF LAW The criteria for establishing service connection for periodontal disease for compensation purposes have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.381, 4.150 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating their claims 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, 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 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). 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. 38 C.F.R. § 3.159(b)(1). This notice should be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the 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 service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In a July 2007 notice letter sent prior to the initial denial of the claim for service connection, the RO advised the Veteran of what the evidence must show to establish entitlement to service-connected compensation benefits, and described the types of information and evidence that the Veteran needed to submit to substantiate the claim. The RO also explained what evidence VA would obtain, and make reasonable efforts to obtain on the Veteran's behalf, in support of the claim. The RO further informed the Veteran how VA determines the disability rating and effective date once service connection is established. In consideration of the foregoing, the Board finds that the VCAA notice requirements were fully satisfied prior to the initial denial of the claim, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. Regarding VA's duty to assist in claims development, the record contains all available evidence pertinent to the appeal. VA has requested records identified throughout the claims process. The Veteran was given appropriate notice of the responsibility to provide VA with any treatment records pertinent to the appeal, and the record contains sufficient evidence to make a decision on the appeal. The available service treatment records are included in the record, and post-service treatment records identified as relevant to the appeal have been obtained or otherwise submitted. The Veteran did not identify any treatment records not already of record after being asked, in the January 2013 letter, to provide such information. Pursuant to the Board's remand directive, the Appeals Management Center (AMC) requested STRs for the Veteran's first period of active service and received a negative response from the National Personnel Records Center (NPRC). In September 2003, a Formal Finding on the Unavailability of Service Treatment Records for the period of service from January 7, 1975 to January 9, 1977 was made. In September 2013, the Veteran was notified of the negative response received from the NPRC for STRs for the first period of service from January 1975 to January 1977. The Veteran stated that he did not have copies of STRs from that period of service and asked that the case be forwarded for decision. Although the Veteran was not specifically told that he was ultimately responsible for providing the records, the Veteran reasonably understood that it was ultimately his responsibility to provide the records. In consideration of the foregoing, the Board finds that further efforts to obtain the missing service treatment records would be futile, and the Veteran has received adequate notification of the inability to obtain his complete service treatment records under 38 C.F.R. § 3.159(e) (2013). Also, pursuant to the Board's remand directive, the Veteran underwent a VA dental examination in connection with the appeal in March 2013. At that time, the VA medical examiner considered the Veteran's past and present dental history and complaints and treatment, reviewed the claims file, and performed a thorough dental examination. The VA medical examiner diagnosed periodontal disease, and provided a medical opinion based on an accurate dental history, consideration of the Veteran's current complaints and treatment, and the findings shown on the examination. The VA medical opinion was supported by adequate rationale. In consideration thereof, the Board finds that the March 2013 VA medical examiner had adequate facts and data regarding the history and current nature and severity of the Veteran's disability when rendering the medical opinion. See VAOPGCPREC 20-95 (interpreting that the determination as to whether review of prior medical records is necessary in a particular case depends largely upon the scope of the examination and the nature of the findings and conclusions the examiner is requested to provide, so that in some cases an accurate history by a veteran may be a valid basis for an examination report rather than claims file review); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran). For these reasons, the Board finds that the March 2013 VA medical examination and medical opinion are adequate, and no further examination or medical opinion is needed. Neither the Veteran nor the representative has made the RO or the Board aware of any other evidence relevant to the appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal, and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the appeal. The Board further finds that there has been substantial compliance with the prior Board remand directives. In view of the foregoing, the Board will proceed with appellate review. Service Connection Legal Criteria Under current VA regulatory criteria, compensation is only available 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 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 purpose 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(2013). Service Connection Analysis In this case, the Veteran contends that he was not provided with the appropriate facilities for proper oral hygiene for up to a month at a time while in the field during service and, as a result, he developed periodontal disease. See, e.g., July 2007 VA Form 21-4138. He seeks service connection for periodontal disease on such basis. The Veteran does not contend, and the evidence does not show, that he had dental trauma while on active duty. After review of the lay and medical evidence of record, the Board initially finds that the Veteran has current periodontal disease. At the March 2013 VA dental examination, the VA medical examiner noted that the Veteran had periodontal disease that was mostly stable due to the Veteran's current regular dental care and improved oral hygiene habits. The Board next finds, however, that the weight of the evidence is against finding that periodontal disease or symptoms related thereto manifested during service. The available STRs, which pertain to the Veteran's second period of active service, are absent of any complaint, finding, or treatment for periodontal disease during service. Rather, according to the March 2013 VA medical examiner, the available STRs show that routine dental care, including dental cleanings, was administered during the Veteran's service, with a December 1980 panoramic x-ray from his time in military service showing no missing teeth during that period or evidence of significant bone loss due to periodontal disease. Also, on the July 1981 service separation report of medical history, the Veteran checked "No" when asked if he then had or had ever had "severe tooth or gum trouble." On the July 1981 service separation examination report, no dental defects or diseases were noted. The Board further finds that the evidence weighs against finding that the current periodontal disease is causally or etiologically related to service. After considering the Veteran's past and current symptoms and treatment of periodontal disease, the March 2013 VA dental examiner opined that it was less likely than not that it was incurred in or caused by an in-service injury, event, or illness. In support of the medical opinion, the March 2013 VA medical examiner explained that the etiology of periodontal disease was plaque and bacteria, and it was common dental knowledge that periodontal disease was a chronic dental condition that took an extended period of time (over a month) to result in recession and pocketing. The VA medical examiner then noted that periodontal disease resolved predictably and quickly to dental treatment if regular dental care was taken (which was provided by the military) and oral hygiene was improved (noting the Veteran's improved oral hygiene habits). The VA medical examiner further noted that the Veteran had regular and routine dental care while in the military, as well as opportunities to acquire dental hygiene tools such as a toothbrush and floss at dental visits. The VA medical examiner further noted that the periodontal disease was due to the Veteran's own neglect and genetic predisposition, not a result of his military service. Because the March 2013 VA medical examiner had adequate facts and data on which to base the medical opinion and provided a sound rationale for the medical opinion, and there is no medical opinion to the contrary of record, it is of great probative value. Moreover, service-connected compensation benefits are not authorized for periodontal disease. Rather, service connection for periodontal disease may only be established for treatment purposes, and a claim for eligibility for treatment for periodontal disease has been referred to the AOJ above. For these reasons, the Board finds that a preponderance of the evidence weighs against the Veteran's claim for service connection for periodontal disease. In reaching this conclusion, the Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the Veteran's claim, and that doctrine is not applicable. ORDER Service connection for periodontal disease is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs