Citation Nr: 1428055 Decision Date: 06/20/14 Archive Date: 06/26/14 DOCKET NO. 12-35 747 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a dental disorder for compensation purposes, claimed as loss of teeth. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from September 1968 to June 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. A claim for eligibility for dental treatment was previously referred by the RO to the Salisbury, NC VA Medical Center (VAMC). 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). VA treatment records show that the Veteran currently receives dental care through the Asheville VAMC; therefore, because the claim for VA dental treatment has been resolved in the Veteran's favor, the Board finds that the issue on appeal is properly considered as service connection for a dental disorder for compensation purposes, claimed as loss of teeth. See March 2014 dental periodontic note (noting that the Veteran was new to the clinic and presented for comprehensive oral evaluation). FINDINGS OF FACT 1. At service entrance, Tooth 1, Tooth 2, Tooth 12, Tooth 16, Tooth 17, Tooth 19, Tooth 20, Tooth 29, Tooth 30, and Tooth 32 were missing. Tooth 18, among other teeth, had an existing restoration. 2. At service separation, Tooth 18 was also missing. 3. The Veteran received routine dental treatment during active service. 4. There was no dental trauma during service. 5. The Veteran currently has periodontal disease. 6. Compensation is not available for periodontal disease and residuals related thereto under VA regulation. 7. The Veteran had qualifying service in the Republic of Vietnam so herbicide exposure during service is presumed. 8. Periodontal disease, including loss of teeth, is not a disease associated with herbicide exposure; therefore, it is not presumed to be due to exposure to herbicide agents during service. CONCLUSION OF LAW The criteria for establishing service connection for a dental disorder for compensation purposes, claimed as loss of teeth, have not been met. 38 U.S.C.A. §§ 1110, 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 the March 2011 notice letter sent prior to the initial denial of the claim, the RO advised the Veteran of what the evidence must show to establish 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 complete service treatment records are included in the record, and post-service treatment records, including dental treatment records, identified as relevant to the appeal have been obtained or otherwise submitted. The Veteran has not been provided with a VA medical examination because the service dental records are sufficient medical evidence to decide the appeal; therefore, no medical examination or medical opinion is needed in this case. 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. In view of the foregoing, the Board will proceed with review. Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). As a general matter, service connection for a disability requires competent evidence of (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). 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; 38 C.F.R. §§ 3.381, 17.161. The Veteran is currently diagnosed with chronic periodontitis and has a loss of teeth, which are not "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are not applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In order to establish presumptive service connection for a disease associated with exposure to certain herbicide agents, a veteran must show the following: (1) that he served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 (or was otherwise exposed to an herbicide agent during active service); (2) that he currently suffers from a disease associated with exposure to certain herbicide agents enumerated under 38 C.F.R. § 3.309(e); and (3) that the current disease process manifested to a degree of 10 percent or more within the specified time period prescribed in section 3.307(a)(6)(ii). 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). If a veteran was exposed to a herbicide agent during active military, naval, or air service, the certain diseases shall be service-connected, if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service. The list of diseases associated with exposure to certain herbicide agents does not include a dental disability, including periodontal disease. See 38 C.F.R. § 3.309(e). In the case of a veteran who engaged in combat with the enemy in a period of war, "satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service." See 38 U.S.C.A. § 1154(b); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996). The standard used to determine whether a veteran engaged in combat with the enemy is reasonable doubt, which is to be resolved in a veteran's favor. See VAOPGCPREC 12-99. The provisions of 38 U.S.C.A. § 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder. See Libertine at 522-23. The provisions of 38 U.S.C.A. § 1154(b) do not establish service connection for a combat veteran; it aids a veteran by relaxing the adjudicative evidentiary requirements for determining what happened in service. Clyburn v. West, 12 Vet. App. 296, 303 (1999). Service Connection Analysis The Veteran seeks service connection for a dental disorder for compensation purposes. He specifically asserts that he lost several teeth in 1969 while serving in the Republic of Vietnam after his bunker was hit by a mine blast. The Veteran also contends that herbicide exposure during service weakened his bone structure causing a loss of several teeth and bleeding gums. See, e.g., March 2011 and July 2011 handwritten statements; April 2012 VA Form 21-4138; December 2012 VA Form 9. Because the Veteran served in the Republic of Vietnam from February 1969 to February 1970, herbicide exposure during service is presumed. Preliminarily, the Board finds that the Veteran did not engage in combat with the enemy. The Veteran served with the primary military occupational specialty (MOS) of central office supervisor, which is not a MOS typically associated with combat service, and is in receipt of no military citations that denote combat service. There is further no satisfactory lay or other evidence that the alleged injury to the teeth due to combat injury during service actually occurred. Although the Veteran has reported that he lost his teeth during a mine blast in 1969, the service treatment records document several teeth missing at service entrance, with only one additional tooth (i.e., Tooth 18) missing at service separation. The service dental records also show treatment for Tooth 18 beginning in September 1970, many months after the Veteran's Vietnam service had ended. There is no indication of dental trauma to Tooth 18 during service. Rather, the evidence shows that the Veteran entered service with an existing restoration at Tooth 18 and received routine dental treatment for Tooth 18 beginning several months after returning from Vietnam service. Additionally, during the course of the appeal, the Veteran alleged that he lost several teeth while serving in Vietnam during the same mine blast that caused injury to the service-connected left shoulder; however, during service and shortly thereafter, the Veteran reported that the left shoulder was injured in Vietnam after falling and dislocating the shoulder. He made no mention of a mine blast or combat-related injury, including any dental trauma. In consideration of the foregoing, the Board finds that the Veteran's account of a mine blast resulting in loss of teeth, is not credible or consistent with the circumstances, conditions, or hardships of his service; therefore, the evidentiary presumption of 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) does not apply in this case. See VAOPGCPREC 12-99. After review of the lay and medical evidence of record, the Board finds that the weight of the evidence is against finding that a dental disorder, including loss of teeth, is causally or etiologically related to service. The service dental records show that, two days before the Veteran entered active service in September 1968, the following teeth were shown to be missing: Tooth 1, Tooth 2, Tooth 12, Tooth 16, Tooth 17, Tooth 19, Tooth 20, Tooth 29, Tooth 30, and Tooth 32. At the June 1971 service separation examination, the following teeth were shown to be missing: Tooth 1, Tooth 2, Tooth 12, Tooth 16, Tooth 18, Tooth 19, Tooth 20, Tooth 29, and Tooth 32. The only tooth shown to be present at service entrance and missing at service separation is Tooth 18. All other missing teeth noted at service separation had previously been noted as missing at service entrance. When the Veteran entered service, an existing restoration (i.e., a filling) was present at Tooth 18. "Restoration" is the act of renewing, rebuilding or reconstructing; the return to a previous state or condition, as of health; the process of replacing by artificial means a missing, damaged or diseased tooth or teeth or any part thereof; the act of re-forming the contours of parts of teeth destroyed by lesions or injury, thereby restoring their functional properties. See Dorland's Illustrated Medical Dictionary 1617 (30th ed. 2003). During service from September 1970 to February 1971, the Veteran received routine dental treatment for Tooth 18, which included a hemisection, mesial pedicle graft, and osseous recontour graft. See Dorland's Illustrated Medical Dictionary 830 (30th ed. 2003) (defining "hemisection" as surgical division of a multiple rooted tooth from the crown to the furcation with removal of a root and part of the crown). The service dental records show no dental trauma to Tooth 18 in 1969 or at any other time during active service. As explained above, the service dental treatment records show no dental trauma during service or dental treatment for Tooth 18 until September 1970, approximately seven months after the Veteran's Vietnam service had ended. Because the service dental records show dental treatment (i.e., a temporary filling) for another tooth (Tooth 31) during and after service in Vietnam, it is likely that the Veteran would have also received dental treatment for Tooth 18, if it had been lost due to a mine blast in 1969 as now alleged. The absence of any such evidence weighs against the claim. The Board notes that the service dental records are likely to reflect accurately the teeth missing at service entrance as compared to service separation; therefore, the records are of significant probative value in determining the presence and condition of the Veteran's teeth at service entry as compared to service separation. The service dental records -- showing that the Veteran entered service with ten missing teeth and an existing restoration at Tooth 18 (among others), had no dental trauma during service, and only received routine dental treatment for Tooth 18 during service -- are complete, credible, and outweigh the Veteran's later account that his teeth were in place when he entered service and several teeth were lost as a result of a mine blast during service in Vietnam, which later account was first made many years after service separation and after filing the VA claim. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred) (Lance, J., concurring); see also Fed. R. Evid. 803(7) (indicating that the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (the absence of a notation in a record may be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred). Regarding the current diagnosis of chronic periodontitis, to include severe gingivitis, the Board notes that service-connected compensation benefits are not authorized for periodontal disease. Rather, service connection for periodontal disease may only be established for treatment purposes. As previously noted, the Veteran is already in receipt of dental treatment through VA. Also, chronic periodontal disease, to include any residuals related thereto such as a loss of teeth, by regulation, is not a disease for which service connection may be presumed as being the result of herbicide exposure. The scientific studies reviewed as part of that regulatory process has established no correlation between herbicide exposure and periodontal disease, and bone conditions were specifically excluded by regulation as a disease associated with herbicide exposure. See 79 Fed. Reg. 20,308; see also Institute of Medicine, Veterans and Agent Orange: Update 2012 (Update 2012). There is no credible evidence of record that has demonstrated a relationship between the Veteran's periodontal disease or loss of teeth and active military service, to include presumed exposure to herbicide agents during service. Although the Veteran has asserted that presumed herbicide exposure during active service caused the loss of teeth and bleeding gums, he is a lay person and does not have the requisite medical expertise to diagnose periodontal disease or render a competent medical opinion regarding the relationship between the current periodontal disease and loss of teeth and active service, including presumed herbicide exposure. Such opinions as to causation involve making assessments based on clinical testing results and medical knowledge of unseen systems processes and disease processes involving the teeth and gums that are not observable by the five senses of a lay person. Consequently, the purported lay opinion relating the current dental disorder to active service is of no probative value. In consideration thereof, the Board finds that the preponderance of the evidence is against the claim, and service connection for a dental disorder for compensation purposes, claimed as loss of teeth, must be denied. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a dental disorder for compensation purposes, claimed as loss of teeth, is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs