Citation Nr: 1305676 Decision Date: 02/15/13 Archive Date: 02/21/13 DOCKET NO. 09-37 246 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a dental disability for compensation purposes. REPRESENTATION Veteran represented by: Illinois Department of Veterans Affairs ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran had active service from July 1999 to July 2003 and from January 2004 to April 2005. He also had additional, unverified service in the United States Army Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In April 2012, the Board remanded the Veteran's claim for further evidentiary development. As will be discussed below, the Board's April 2012 remand directives were substantially complied with. The Veteran's claim has been returned to the Board. In dental claims, the RO adjudicates the claim for service connection and the VA Medical Center (VAMC) adjudicates the claim for outpatient treatment. As the issue currently before the Board stems from an adverse determination by the RO, the appeal is limited to the issue of service connection for a dental disability for compensation purposes. As noted by the Board in the April 2012 remand, a claim for service connection is also considered a claim for VA outpatient dental treatment. Mays v. Brown, 5 Vet. App. 302, 306 (1993). Accordingly, the issue of service connection for a dental disability for obtaining VA outpatient dental treatment was referred to the Agency of Original Jurisdiction (AOJ) by the Board in April 2012 for consideration in the first instance. 38 C.F.R. § 17.161 (2011). In an October 2012 rating decision, the VA Appeals Management Center (AMC) granted service connection for dental treatment purposes for teeth numbers 7, 8, and 9. The Veteran has not expressed disagreement with this determination, and thus, that matter is not before the Board. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) (pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA). FINDING OF FACT There has been no demonstration by the most probative medical, or competent and credible lay, evidence of record, that the Veteran's in-service dental injury included impairment of the mandible, loss of a portion of the ramus, or loss of a portion of the maxilla, and his subsequent loss of tooth number 8 was not due to loss of substance of the body of the maxilla or mandible. CONCLUSION OF LAW Dental disability for compensation purposes was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act (VCAA) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Duty to Notify The notice requirements of the VCAA require VA to notify a 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, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In any event, where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In conjunction with his claim for benefits, the RO sent a VCAA notice letter to the Veteran in January 2009 which notified him of the criteria necessary to substantiate a claim for direct service connection as well as how VA determines disability ratings and effective dates under the Court's holding in Dingess/Hartman. However, this letter did not inform the Veteran of the requirements of the VCAA with respect to a dental claim and the dental-specific requirements. The Board finds no prejudice to the Veteran in this regard, as the evidence reflects that the Veteran had actual knowledge of such elements. First, the requirements were sent to the Veteran in an August 2009 Statement of the Case (SOC). The claim was then readjudicated in an October 2012 Supplemental Statement of the Case (SSOC) which provided the reasons for the denial. Second, the Veteran has been represented by an accredited representative during his appeal. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006) (appellant's representation by counsel "is a factor that must be considered when determining whether that appellant has been prejudiced by any notice error"). Third, the Veteran has indicated that he is aware that compensation may only be paid for dental disabilities resulting from in-service trauma, as evidenced by his notice of disagreement and VA Form 9, in which he asserted that he suffered an in-service injury to his mouth which affected his tooth. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'L Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). All the VCAA requires is that the duty to notify is satisfied, and that claimants be given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard, supra; Sutton v. Brown, 9 Vet. App. 553 (1996). Duty to Assist The record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include private medical records, service department and VA medical records, a VA examination report, and statements from the Veteran. A July 2009 VA memorandum reflects a formal finding on the unavailability of service treatment records pertaining to the period of the Veteran's service from January 2004 to April 2005. As noted, a VA clinical examination has been obtained. 38 C.F.R. § 3.159(c) (4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA clinical examination obtained in this case is more than adequate, as it is predicated on a full reading of the medical records in the Veteran's claims file and clinical examination of the Veteran. As appropriate, clinical findings pertinent to the Veteran's claim were obtained. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4). In providing the Veteran with an adequate VA examination in connection with the his claim, the Board's April 2012 remand directives have been substantially complied with. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). As discussed above, the Veteran was notified and made aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by responding to notices, submitting evidence, and participating in a medical examination. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Legal Criteria Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a dental disorder for compensation purposes can only be established for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150 (2011), such as impairment of the mandible or maxilla, loss of a portion of the ramus, complete or partial loss of the mandible, and limitation of temporomandibular articulation. Compensation is available for loss of teeth only if due to loss of substance of the body of the maxilla or mandible. See Simmington v. West, 11 Vet. App. 41 (1998). For loss of teeth to merit compensation, bone loss through trauma or disease such as osteomyelitis must be shown for purposes of compensability; the loss of the alveolar process as a result of periodontal disease is not considered disabling. See 38 C.F.R. § 4.150, Diagnostic Code 9913, at Note. Analysis The Board has reviewed all the evidence in the Veteran's claims file. Although there is 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 analysis below 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). A March 2000 service dental treatment record reflects that the Veteran reported that he had broken his tooth 10 minutes ago. The record indicates that he had an oblique fracture of tooth number 8. Visualization of the fracture revealed vertical and horizontal components. Numerous service treatment records indicate that the Veteran received subsequent treatment for tooth number 8 during service. A May 2000 endodontic evaluation reflects that the Veteran had a history of trauma to tooth number 8 and a pulpectomy. A July 2000 service dental treatment record indicates that the Veteran was referred for evaluation of tooth number 8 and that he had a history of trauma. A June 2002 service dental treatment record indicates that tooth number 8 required removal. A September 2002 service treatment record indicated tooth number 8 was post-removal. The dentist suspected a need for a cast post or core with marginal overlay. An October 2002 service treatment record indicates that tooth number 8 had a fracture slightly above the gingival margin. The service treatment records do not indicate how the Veteran fractured his tooth. A March 2009 letter from Dr. Jarzen, a private dentist, indicates that the Veteran told him that tooth number 8 was traumatized while he was in the armed forces and was treated with endodontics, a preformed post and core, and a P/M crown. Dr. Jarzen stated that the treatment failed. The post and core had come out with the P/M crown attached and the remaining root had a vertical fracture. There was mobility of the remaining fractured pieces of root and peripheral chronic infection and loss of bone around it, which was clearly visible on X-ray examination. Dr. Jarzen stated that the remaining tooth had to be extracted. The Veteran told Dr. Jarzen that he had no additional trauma to the area since the original mishap in military. He reported that "the tooth just fell out." Dr. Jarzen noted that he had not reviewed the Veteran's service treatment records. In light of above, the Board remanded the Veteran's claim in April 2012 in order to afford him a VA examination to clarify whether the Veteran's loss of tooth number 8 was due to bone loss of the maxilla due to trauma or disease such as osteomyelitis. See 38 C.F.R. § 4.150, Diagnostic Code 9913 (2011). The June 2012 VA examination report reflect that, after a review of the complete VA claims file and a physical examination of the Veteran, to include the completion of x-rays, the examiner noted that the Veteran reported injuring tooth number 8 during his service when he was hit "in the mouth" with a crowbar. The examiner stated that his reading of the Veteran's in-service periapical radiographs was consistent with the reports in the service treatment records. X-rays testing in connection with the June 2012 VA examination confirmed that tooth number 8 was missing and that a bridge was in place from tooth number 7 to tooth number 9. The examiner opined that the loss of tooth number 8, necessitating a bridge between tooth number 7 and tooth number 9, was the result of the Veteran's in-service dental trauma; however, such was not due to loss of substance of the body of the maxilla or mandible, to include the ramus, without continuity, and that the masticatory surface had been restored by placement of a fixed partial denture. Notably, the x-ray testing did not show any bony injury to anatomical loss, nonunion, or malunion of the maxilla or mandible, to include the ramus. Also, the clinician stated that there was no evidence of osteomyelitis or osteoradionecrosis of the maxilla or mandible, to include the ramus. The Veteran is competent to state he injured his tooth during service. Also, it is not disputed that he received dental treatment during service, as outlined above. However, service connection for a dental disorder for compensation purposes can only be established for certain types of dental and oral conditions as per 38 C.F.R. § 4.150 and the Court's holding in Simmington, recounted above. In the present case, the evidence does not show the Veteran's in-service dental trauma resulted in any type of dental disorder for which service connection for compensation purposes may be granted. As noted above, a July 2009 VA memorandum reflects a formal finding of unavailability of the Veteran's service treatment records pertaining to his period of active duty from January 2004 to April 2005. When at least a portion of the service records cannot be located, through no fault of the Veteran, VA has a "heightened" obligation to more fully discuss the reasons and bases for its decision and to carefully consider applying the benefit- of-the-doubt doctrine. See, e.g., O'Hare v. Derwinski, 1 Vet. App. 365 (1991). However, the threshold for allowance of a claim is not lowered and the need for probative medical nexus evidence causally relating the current disability at issue to service is not eliminated; rather, the Board's obligation to discuss and evaluate evidence is heightened. Russo v. Brown, 9 Vet. App. 46 (1996). In the present case, the absence of these records has little effect on the issue as the Veteran has stated that he did not experience further dental injury or present for dental treatment during this period of service. (See a July 2009 statement from the Veteran.) In view of the foregoing, the Board finds that the preponderance of the evidence is against a grant of service connection for dental disability for compensation purposes. As the preponderance of the evidence is against the claim, the benefit of doubt doctrine is not for application. ORDER Entitlement to service connection for a dental disability for compensation purposes is denied. ____________________________________________ U.R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs