Citation Nr: 1428084 Decision Date: 06/20/14 Archive Date: 06/26/14 DOCKET NO. 12-34 873 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Whether new and material evidence has been submitted to reopen a previously-denied claim for entitlement to service connection for dental trauma of the upper and lower teeth for treatment purposes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Tyson, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty during the Korean War from July 1953 to August 1956. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran testified at a May 2014 video conference hearing before the undersigned Veterans Law Judge. A complete transcript of the hearing is of record. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's electronic files on the "Virtual VA" and VBMS systems to insure a total review of the evidence. In the decision below, the Board grants reopening of the claim for service connection for dental trauma for treatment purposes. However, prior to adjudication on its merits, the Board finds it necessary to obtain additional development. Accordingly, discussion of this claim continues in the REMAND portion of the decision. FINDINGS OF FACT 1. The RO denied the Veteran's claim of entitlement to service connection for dental treatment purposes in a November 2004 rating decision. The Veteran was notified of the decision. However, he did not file new evidence or a notice of disagreement within one year of that rating decision. 2. Evidence obtained since the November 2004 rating decision raises a reasonable possibility of substantiating the claim of entitlement to service connection for dental trauma for treatment purposes. CONCLUSIONS OF LAW 1. The November 2004 rating decision is final. 38 U.S.C.A. § 7105 (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.104, 20.1103 (2013). 2. New and material evidence to reopen the claim for service connection for dental trauma for treatment purposes has been received. 38 U.S.C.A. § 5108 (West 2002 and Supp. 2013); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks service connection for dental trauma for treatment purposes, which was originally denied in a November 2004 rating decision. The Veteran did not submit new evidence or otherwise appeal these issues within one year so the determination became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104(a). Even though that determination became final, a previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C.A.§ 5108; 38 C.F.R. § 3.156. I. Legal Criteria: Reopening of Service Connection Claims Based on New and Material Evidence New evidence is defined as evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aphid, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). Therefore, the initial question before the Board in each of these claims is whether new and material evidence has been presented to reopen the claim. The Board is aware that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered new if it has not been previously submitted to agency decision makers, and it is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Moreover, the Court explained this standard is intended to be a low threshold. Id. In addition, evidence is presumed to be credible for the limited purpose of determining whether to reopen a claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The claim sought to reopen is one of service connection. Service connection may be granted for disability or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires (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). Under current VA regulations, 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. A veteran is entitled to VA outpatient dental treatment if he qualifies under one of the categories outlined in 38 U.S.C.A. § 1712 and 38 C.F.R. § 17.161. A veteran will be eligible for Class I VA outpatient treatment if he has an adjudicated compensable service-connected dental condition. 38 U.S.C.A. 1712(b)(1)(A); 38 C.F.R. § 17.161(a). Veterans having a service-connected noncompensable dental condition determined to be the result of combat wounds or other service trauma, will be eligible for VA dental care on a Class II(a) basis. 38 U.S.C.A. § 1712(b)(1)(C); 38 C.F.R. § 17.161(c). II. Analysis The Veteran contends that he had dental trauma during service. At the time of the November 2004 rating decision, the record contained a July 1956 service medical examination report without any notations of dental issues, and VA treatment records from March 2003 to July 2004 without any notations of dental treatment. The Board notes that the Veteran's service treatment records were unavailable in their entirety, through no fault of the Veteran, because they were destroyed by fire at the National Personnel Records Center. On the basis of this information, the RO denied the Veteran's service connection claim for failure to demonstrate the existence of a current disability and the existence of trauma during service. However, since the November 2004 decision, evidence has been submitted that the Board deems new and material for reopening purposes. Since the November 2004 rating decision, the record has been supplemented with VA treatment records from May 2010 to December 2010 and the Veteran's testimony at a May 2014 video conference hearing before the undersigned VLJ. The Board finds this evidence" new" because it was not previously submitted before the VA prior to the RO's November 2004 decision. The materiality of this new evidence is tied to whether it has reasonable possibility of substantiating the Veteran's claim. In this claim, evidence of either a current disability or of a nexus between a current disability and military service would satisfy this requirement. In the current claim, there is new evidence of both found in the Veteran's May 2014 hearing testimony. During the hearing, the Veteran discussed the nature of his injury in service and the type of treatment he had undergone since separation. Specifically, the Veteran recounted an incident in service when he was hit in the mouth with a rifle causing significant pain and bleeding. The Veteran also provided testimony of recurrent treatment since service through private dentists . Both the Veteran's recount of his in-service trauma and the acknowledgement of extensive post-service dental treatment is relevant to the Veteran's service connection claim, and at a minimum triggers VA's duty to assist. Accordingly, the Board reopens the Veteran's service connection claim. While the new evidence is sufficient to reopen the claim, remaining questions regarding the claim call for the development of additional evidence before adjudicating service connection on its merits. The Board will address the evidence to be developed in a REMAND section, below. In light of the favorable decision as it relates to the Veteran's reopening of a previously denied service connection claim, any error by VA in complying with the requirements of Veterans Claims Assistance Act of 2000 is moot. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. ORDER With new and material evidence having been received, the Veteran's previously denied claim for entitlement to service connection for dental trauma for treatment purposes is reopened. To that extent only, the claim is allowed. REMAND Although this matter is advanced on the docket, this claim regrettably must be remanded to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim. At the hearing, the Veteran noted several years of dental treatment that has yet to be associated with the claims file. As these records would be highly relevant to the issue on appeal the Board finds remand is required to identify and obtain these records. If the outstanding records demonstrate a current dental disability, then the Veteran should be afforded a medical examination with nexus opinion in connection with his reopened claim to determine if the nature of the injury was incurred in service. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. At the hearing, the Veteran stated that he has seen a family dentist and a periodontist regularly for the past 20 years. The RO/AMC must contact the Veteran to obtain the names and/or facilities where this treatment took place as well as any requisite releases. Then, the RO/AMC must request and obtain all outstanding private dental treatment records. Once completed, these records along with responds to all record requests must be associated with the claims file. 2. If the new evidence demonstrates a current dental disability, then schedule the Veteran for a dental examination. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed, and all findings should be set forth in detail. Once the nature of the dental condition(s) is established, please answer the following question: Is it is at least as likely as not (50 percent or greater probability) that the diagnosed dental condition is etiologically related to the described traumatic incident from the Veteran's service? The examiner should include in the examination report the rationale for any opinion expressed. However, if the examiner cannot respond to the inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion. 3. Thereafter, the RO/AMC should readjudicate the claims on appeal in light of all additional evidence received. If any benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs