Citation Nr: 1341916 Decision Date: 12/18/13 Archive Date: 12/31/13 DOCKET NO. 05-35 249 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for tooth loss, claimed as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to July 1970. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a February 2004 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which denied, in part, service connection for diabetes mellitus and tooth loss secondary to diabetes mellitus. The Veteran provided testimony at a hearing before a decision review officer (DRO) at the RO in September 2006. A transcript of this hearing has been associated with the Veteran's VA claims folder. This case was previously before the Board in September 2009, April 2012, and March 2013 for additional development which has since been completed. Accordingly, a new remand is not required in order to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). A claim for service connection for a dental condition is also considered to be a claim for VA outpatient dental treatment. Mays v. Brown, 5 Vet. App. 302, 306 1993). As this matter stems from an adverse RO determination dealing only with the issue of establishing service connection for a dental disability for compensation purposes, to include as secondary to a service-connected disability, the appeal is limited to this issue only. See Matthews v. Nicholson, 19 Vet. App. 202, 205 (2005). It is unclear whether a formal determination was made as to the Veteran's entitlement to VA dental treatment. Therefore, the claim of entitlement to service connection for a dental condition for VA outpatient dental treatment purposes is REFERRED to the RO for action in accordance with amended VA regulation 38 C.F.R. § 3.381. See Dental Conditions, 77 Fed. Reg. 4469 (Jan. 30, 2012). FINDINGS OF FACT 1. All reasonable notification and development necessary for the equitable disposition of the instant case have been accomplished. 2. The preponderance of the evidence is against a finding that the Veteran's current tooth loss is due to in-service dental trauma. 3. The preponderance of the evidence is against a finding that the Veteran's current tooth loss was caused or aggravated by his service-connected diabetes mellitus. CONCLUSION OF LAW The criteria for a grant of service connection for tooth loss are not met, to include as secondary to service-connected diabetes mellitus. 38 U.S.C.A. §§ 1110, 1712, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.306, 3.310, 3.381 (2013); VAOGCPREC 5-97. REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminary Matters The Board notes at the outset that VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Under the law, VA is required to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2013). The United States Court of Appeals for Veterans Claims (Court) has indicated that 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA must provide a claimant notice before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Dingess/Hartman, supra; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was sent pre-adjudicatory notification regarding his current claim via letter dated in September 2003. He was provided additional VCAA notice by way of letters sent in March 2006, November 2009 and March 2013. These letters, in pertinent part, informed the Veteran of what was necessary to substantiate his claim, what information and evidence he must submit, what information and evidence will be obtained by VA, as well as the information and evidence used by VA to determine disability rating(s) and effective date(s) should service connection be established. Although all of these letters were clearly not received prior to the initial adjudication of this claim, the claim was readjudicated by way of an October 2013 Supplemental Statement of the Case. This readjudication "cures" the timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his tooth loss claim and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009). In addition, the Board finds that the duty to assist has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records. He has not identified any relevant evidence that has not been obtained or requested. Moreover, he did not respond to the RO's March 2013 request to identify recent treatment records. Further, the Veteran has had the opportunity to present evidence and argument in support of his claims, to include at the September 2006 DRO hearing. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the DRO who conducted the September 2006 hearing noted the issue on appeal, asked questions to clarify the Veteran's contentions and treatment history, and provided some general information regarding the elements necessary to substantiate a service connection claim. The Board acknowledges that the testimony at this hearing focused on disabilities other than the claimed tooth loss, to include the claim of service connection for the diabetes mellitus which is the basis for the secondary service connection claim. Nevertheless, the Board observes that the testimony and statements of the Veteran in this case demonstrated that he had actual knowledge of the elements necessary to substantiate his current claim. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of the hearing officer. As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. 3.103(c)(2) have been satisfied. The Board further notes the Veteran was accorded a VA medical examination regarding his tooth loss claim in April 2010. Supplemental opinions/addendums were received in January 2011, January 2013, and July 2013. The Board previously found various deficiencies in the opinions provided in April 2010, January 2011, and January 2013. However, all deficiencies have been adequately addressed and rectified by the July 2013 opinion. This opinion was based upon a medical evaluation of the Veteran; an accurate understanding of his medical history based upon review of his VA claims folder, and described the disability in sufficient detail so that the Board's evaluation is an informed determination. For these reasons, the Board finds that the VA opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). No inaccuracies or prejudice has been identified with respect to July 2013 opinion. Furthermore, the record does not reflect that these examination reports (when viewed cumulatively) are inadequate for rating purposes. In view of the foregoing, the Board finds that the duty to assist the Veteran has been satisfied in this case. Legal Criteria and Analysis Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Dental disorders are, in general, treated differently than other medical disorders in the VA benefits system. See 38 C.F.R. § 3.381. As provided by VA regulations, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses and periodontal disease are not considered disabling conditions, but may be considered service connected solely for establishing eligibility for VA outpatient dental treatment. 38 C.F.R. § 3.381(a). Service connection may be granted for a dental condition of each tooth and periodontal tissue shown by the evidence to have been incurred in or aggravated by service. To establish entitlement to service connection for loss of a tooth, the Veteran must have sustained a combat wound or other in-service trauma. 38 U.S.C.A. § 1712; 38 C.F.R. § 3.381(b). The significance of finding that a dental condition is due to service trauma is that a Veteran will be eligible for VA dental treatment for the condition, without the usual restrictions of timely application and one-time treatment. 38 C.F.R. § 17.161(c). The term 'service trauma' does not include the intended effects of treatment provided during a veteran's military service. The term 'trauma' is ordinarily defined as a physical injury caused by a blow, or fall or as a wound; an injury inflicted more or less suddenly, by some physical agent. In other words, an 'injury.' Treatment is given in order to remedy the effects of disease or injury. Dental treatment is not synonymous with dental trauma, and that it would be anomalous to conclude that the remedy for an injury or disease constituted further injury. VAOPGCPREC 5-97 (1997), 62 Fed. Reg. 15,566 (1997). The precedent opinions of the VA General Counsel's Office are binding upon the Board. 38 U.S.C.A. § 7104. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Board has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The medical and lay evidence establish that the Veteran has missing teeth. 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, DC 9913 (2013). In this case, a thorough review of the records does not reflect that the Veteran sustained any dental trauma in service. The service treatment records reflect in-service dental treatment including prophylaxis examinations and restoration of teeth # 10, 18, and 31. There is no evidence of tooth loss due to dental trauma or disease other than periodontal disease in service. There also is no evidence of chronic disease such as osteomyelitis in the Veteran's service dental records. The Veteran himself does not report any in-service dental trauma or disease such as osteomyelitis. The post-service evidence also fails to reflect that the cause of the Veteran's missing teeth is due to in-service dental trauma or disease such as osteomyelitis. On VA examination in April 2010, a VA examiner noted that all of the Veteran's mandibular and maxillary teeth were missing and all teeth had been replaced with complete mandibular and maxillary dentures. The examiner indicated that a radiographic assessment showed bone patterns in the maxillary and mandible arches appeared normal, except for severe resorbed maxilla in the edentulous areas. There was no other evidence of bony pathology. The extraoral and intraoral exams revealed no abnormalities or gross pathology. The examiner's diagnosis was dental edentulism. The examiner concluded that this condition was not related to service. On VA examination in January 2011, the VA examiner reviewed the Veteran's claims file. The examiner noted that there was no indication that there was any damage or injury to the Veteran's teeth that occurred during active duty. He determined that the Veteran's teeth were reasonably sound, well restored, and intact upon separation from service. There is no other competent evidence linking the current Veteran's missing teeth to any in-service dental trauma or disease such as osteomyelitis. The dental treatment which the Veteran received while on active service constituted 'dental treatment' and is not considered a 'dental disability' for VA compensation purposes. See 38 C.F.R. § 3.306(b)(1); VAOGCPREC 5-97. For these reasons, the Board finds that the preponderance of the evidence is against finding that the Veteran's current tooth loss is due to in-service dental trauma or disease such as osteomyelitis. The Board acknowledges that the Veteran actually contends that his tooth loss is due to his service-connected diabetes mellitus or the insulin he takes for this disability, and not due to in-service dental trauma. Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The Board has considered the Veteran's argument that his missing teeth are caused by or related to his service-connected diabetes and/or use of insulin. However, the Board notes that as a lay person, the Veteran is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The effect one disability has upon another involves complex medical issues, particularly where, as here, the Veteran is contending that a physical condition (tooth loss) is due to a disease process (i.e. diabetes mellitus) or medications used to treat that disease process. This finding is supported by the holding of Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) in which the Federal Circuit held in the context of a claimant contending secondary service connection that a veteran's own conclusory generalized statement that his service illness caused his present medical problems was not enough to entitle him to a medical examination. Here, nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion. Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). Therefore, the Board finds that competent medical evidence is required to determine the nature and etiology of the Veteran's claimed tooth loss and particularly the causal relationship, if any, between the tooth loss and his service-connected diabetes. The only competent medical opinions of record are that of the April 2010 VA examiner, to include that examiner's January 2011, January 2013, and July 2013 supplemental opinions. These opinions are against a claim of secondary service connection. In January 2011, the examiner reviewed the claims file. He noted that although there were some private dental records of treatment in 2008 and 2009, there was no other information available concerning any post-service dental treatment. Therefore, it was impossible to determine the course of extent of any dental disease that resulted in the Veteran's loss of teeth. The examiner opined that given the lack of any indication of injury or significant dental problems in service or until many years thereafter, the Veteran's current tooth loss was not likely related to service or to a service-connected disability. Inasmuch as the examiner did not review the private dental records or adequately address whether the Veteran's tooth loss is caused or aggravated by his service-connected diabetes mellitus and/or insulin use related to the diabetes, this opinion-standing alone- is of little probative value on the matter of establishing causal nexus on a secondary basis. In a January 2013 supplemental opinion, the same VA examiner concluded that the Veteran's tooth loss was not caused by or a result of the service-connected diabetes mellitus, to include his insulin use for the diabetes. In support of this opinion, the examiner noted that scientific evidence in the dental literature supports the finding that there is no increased risk for tooth loss in controlled diabetics compared to non-diabetic patients. The examiner explained further tooth loss and dental disease were related to how well a patient practices good home care, including brushing and flossing of teeth, and the frequency of regular cleanings in a dental office. With good home care and regular dental visits, there is no reason to assume that dental disease progression in this Veteran would be different than for any non-diabetic patient. Therefore, there would be no basis for the claim that loss of teeth for this Veteran would be caused by diabetes or the insulin used to control diabetes. The examiner's opinion was that the Veteran's tooth loss is not related to any military service or any service-connected disability. While the January 2013 opinion was clear that there is no direct relationship between the Veteran's tooth loss and his service-connected diabetes mellitus to include the use of insulin, the opinion did not specifically address the matter of aggravation. Therefore, the Board remanded the case in March 2013 to obtain clarification from the VA examiner regarding the matter of secondary aggravation. In a July 2013 supplemental opinion, the same VA examiner summarized and reiterated his prior opinions in this case. The VA examiner opined that dental disease and tooth loss would most likely not be aggravated by the presence of his service-connected diabetes or the use of insulin. The examiner reiterated his rationale from the January 2013 opinion, and further explained his reasoning for the conclusion that neither the service-connected diabetes nor the use of insulin to treat diabetes had aggravated the Veteran's tooth loss and dental disease. Here, the VA examiner is aware of the nature and history of the Veteran's claimed tooth loss from the examination itself and review of the VA claims folder. The VA examiner's July 2013 opinion, regarding both direct and secondary service connection, is not expressed in equivocal or speculative language. Moreover, the examiner provided supporting rationale as to why the claimed tooth loss was not directly related to service due to trauma or chronic disease such as osteomyelitis, nor was it caused or aggravated by the service-connected diabetes mellitus, to include the use of insulin. The rationale included reference to the Veteran's history, the examination findings, and reference to medical literature. The examiner's opinion was clear and unequivocal. Therefore, the July 2013 VA opinion is particularly persuasive. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-3 (2008); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). In addition, the Board finds that all of the VA opinions when viewed cumulatively are adequate for rating purposes. And, as previously noted, no competent medical opinion is of record which supports the Veteran's claims or explicitly refutes the opinions of the VA examiner in this case. In view of the foregoing, the Board finds that the preponderance of the evidence of is against a finding the Veteran's current tooth loss was caused or aggravated by his service-connected diabetes mellitus. No other basis for establishing service connection for the claimed tooth loss is otherwise demonstrated by the evidence of record, to include the Veteran's own contentions. As the preponderance of the evidence is against the Veteran's claimed tooth loss being directly related to service or secondary to his service-connected diabetes mellitus, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). For these reasons, the benefit sought on appeal must be denied. ORDER Entitlement to service connection for tooth loss, claimed as secondary to service-connected diabetes mellitus is denied. ____________________________________________ D. JOHNSON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs