Citation Nr: 1552287	
Decision Date: 12/15/15    Archive Date: 12/23/15

DOCKET NO.  13-00 619	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to service connection for a dental condition for compensation purposes.  

2.  Entitlement to service connection for a dental condition for treatment purposes.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESSES AT HEARINGS ON APPEAL

Veteran and N.B., his wife



ATTORNEY FOR THE BOARD

S. Becker, Counsel

INTRODUCTION

The Veteran served on active duty from October 1953 to October 1955.  This matter comes before the Board of Veterans' Appeals (Board) from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.  Service connection for a jaw/face injury causing dental trauma was denied therein.  This determination encompassed service connection both for compensation purposes and for treatment purposes.  The Veteran appealed it.  He and N.B. testified at a hearing before a Decision Review Officer in October 2012 and before the undersigned in October 2015.  At this time, the Board recharacterizes this matter into service connection for a dental condition for compensation purposes and for treatment purposes for the sake of simplicity.  Please note that it has been advanced on the Board's docket.  38 U.S.C.A. § 7107(a)(2)); 38 C.F.R. § 20.900(c).


FINDINGS OF FACT

1.  The Veteran has loss of his upper teeth (#1-16), but this loss is not due to loss of substance of the body of the maxilla or mandible.

2.  The Veteran's upper teeth (#1-16) loss is a result of service trauma.


CONCLUSIONS OF LAW

1.  The criteria for establishing service connection for a dental condition for compensation purposes have not been met.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.303, 4.150 Diagnostic Codes 9901-9916 (2015).

2.  The criteria for establishing service connection for a dental condition for treatment purposes, specifically Class II(a) eligibility for such treatment with respect to the upper teeth (#1-16), have been met.  38 U.S.C.A. §§ 1712, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.381, 4.150 Diagnostic Code 9913, 17.161 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Preliminary Matters

Before addressing the merits, VA's two preliminary duties are notable.  VA has a duty of notification regarding a claim for VA benefits.  38 U.S.C.A. § 5103; 38 C.F.R. § 3.159.  Notice must be provided prior to initial adjudication of the evidence necessary to substantiate the benefit(s) sought, that VA will seek to obtain, and that the claimant should submit.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Notice of how a rating and an effective date will be assigned if service connection is granted also must be provided.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

Neither Veteran nor his representative has alleged a notice error, as required.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  A May 2009 letter contained information on the criteria for establishing service connection for compensation purposes, the evidence required in this regard, and the Veteran's and VA's respective duties for obtaining evidence.  It further contained information concerning how ratings and effective dates are assigned if service connection is granted.  This was prior to initial adjudication via the September 2009 rating decision.  To the extent the failure to include information on the criteria for establishing service connection for treatment purposes in the aforementioned letter was erroneous, there is no prejudice since this benefit is granted herein.

In addition to the duty to notify, VA has a duty to assist with respect to a claim for VA benefits.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  This includes, as implied from the notification required, aiding the claimant in the procurement of relevant records whether they are in government custody or the custody of a private entity.  38 U.S.C.A. § 5103A(b-c); 38 C.F.R. § 3.159(c)(1-3).  A medical examination and/or medical opinion, to include dental, also must be provided when necessary to make a determination.  38 U.S.C.A. § 5103A(d); 38 C.F.R. §§ 3.159(c)(4), 17.160; McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

Service treatment records regarding the Veteran have been obtained by VA.  Two VA treatment records also have been obtained by VA.  No private treatment records have been obtained by VA.  However, the Veteran has not identified any such records.  He indeed seemingly reported at the October 2015 hearing that he had not received pertinent treatment.  This is despite referencing a discussion with a dentist at another point during that hearing.  No VA dental examination or opinion has been provided.  Yet doing so is not necessary.  There is no indication whatsoever that the Veteran meets any of the criteria for establishing service connection for compensation purposes.  Like above, the lack of an examination or opinion is not prejudicial since service connection for treatment purposes is granted herein.

Significantly, neither the Veteran nor his representative has identified any uncompleted development necessary to make a determination regarding this matter.  The claims file also does not indicate any such uncompleted yet necessary development.  Further notice or assistance accordingly is not required.  VA's duties to notify and to assist have been satisfied, in other words.  Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio, 16 Vet. App. at 183.  Adjudication, in sum, may proceed without prejudice to the Veteran.  Bernard v. Brown, 4 Vet. App. 384 (1993).

Also notable before addressing the merits is that the issue(s) on appeal must be explained and the submission of outstanding evidence must be suggested by the individual presiding over a hearing.  38 C.F.R. § 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010).  The issue (now recharacterized as issues) comprising this matter was identified by the DRO at the beginning of the October 2012 hearing and by the undersigned at the beginning of the October 2015 hearing.  Questions were asked by the DRO, the undersigned, and by the Veteran's representative about the state of the Veteran's teeth during and since service.  As a result, it readily could be inferred that such was of primary import.  The Veteran also was asked questions about dental treatment.  However, no outstanding evidence for which submission could be suggested was identified as a result. 

II.  Service Connection

Several rules govern the Board in making determinations on the merits.  Only the most salient evidence must be discussed even though all the evidence must be and thus has been reviewed.  Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000).  Persuasive or unpersuasive evidence must be identified, however, and reasons must be provided for rejecting favorable evidence.  Gabrielson v. Brown, 7 Vet. App. 36 (1994), Wilson v. Derwinski, 2 Vet. App. 614 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Both medical and lay or non-medical evidence may be discounted in light of its inherent characteristics and relationship to other evidence.  Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997).  When there is an approximate balance of positive and negative evidence, the claimant must be afforded the benefit of the doubt.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49.

A.  Dental Condition for Compensation Purposes

For dental conditions, service connection for compensation purposes is allowable only for chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, limited temporomandibular motion, nonunion or malunion of the mandible or maxilla, and loss of the mandible, maxilla, ramus, condyloid process, coronoid process, hard palate, or teeth.  38 C.F.R. § 4.150, Diagnostic Codes 9900-9916.  

Loss of teeth must be due to loss of substance of the body of the maxilla or mandible from trauma or disease like osteomyelitis rather than loss of the alveolar process from periodontal disease.  38 C.F.R. § 4.150, Diagnostic Code 9913, Note; Simmington v. West, 11 Vet. App. 41 (1998).  Service connection is established when an injury or disease resulting in disability was incurred or aggravated during service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  

Here, the Veteran does not contend that he has chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, limited temporomandibular motion, nonunion or malunion of the mandible or maxilla, or loss of the mandible, maxilla, ramus, condyloid process, coronoid process, or hard palate.  He contends only that he lost all of his upper teeth (#1-16) during service and that getting properly fitting dentures has been a problem ever since.  Service treatment records confirm that the aforementioned teeth were extracted and replaced by dentures.  However, there is no indication that they were extracted due to loss of substance of the body of the maxilla or mandible.  The Veteran has not made any such contention.  Service treatment records are silent in this regard.  In sum, the preponderance of the evidence is against finding a dental condition for which compensation is allowable.  The benefit of the doubt thus is inapplicable.  Service connection for compensation purposes is denied without consideration of any other criteria.

B.  Dental Condition for Treatment Purposes

Service connection for treatment purposes is allowable for conditions rated as noncompensable pursuant to the above and for treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease.  38 C.F.R. § 3.381(b).  Each defective or missing tooth and each disease of the teeth or periodontal tissues is considered separately.  38 C.F.R. § 3.381(c).  The condition of the teeth and periodontal tissues at entry into service also is for consideration.  38 C.F.R. § 3.381(d).  Teeth noted as normal at entry will be service-connected if they were filled or extracted after 180 days of service.  38 C.F.R. § 3.381(e).  Teeth extracted because of chronic periodontal disease will be service-connected only if they were extracted after 180 days of service.  38 C.F.R. § 3.381(g).  

Even where service connection for treatment purposes is allowable for a condition, the Veteran must be eligible for such treatment.  There are various categories of eligibility for such treatment.  Class I eligibility is for Veterans with a compensable service-connected dental condition.  38 U.S.C.A. § 1712(a)(1)(A); 38 C.F.R. § 17.161(a).  Class II eligibility is for one-time treatment for Veterans with a noncompensable service-connected dental condition, to include the aforementioned, upon separation from service.  38 U.S.C.A. § 1712(a)(1)(B); 38 C.F.R. § 17.161(b). Veterans who separated from service before October 1, 1981, must have been discharged under conditions other than dishonorable, served for 180 days or more, made an application within one year of separation, and had a VA dental examination within 14 months after separation unless delayed through no fault of his/her own  38 C.F.R. § 17.161(b)(2)(i).  

Class II(a) eligibility is for Veterans with a noncompensable service-connected dental condition, to include the aforementioned, as a result of combat wounds or other service trauma.  38 U.S.C.A. § 1712(a)(1)(C); 38 C.F.R. § 17.161(c).  "Service trauma" is defined as "an injury or wound produced by an external physical force during the service member's performance of military duties."  Nielson v. Shinseki, 607 F.3d. 802 (Fed. Cir. 2010).  Class II(b) eligibility is for one-time treatment for certain homeless and other enrolled Veterans who meet other requirements (38 U.S.C.A. § 2062, which references 38 U.S.C.A. § 1705).  38 U.S.C.A. § 1712(a)(1)(H); 38 C.F.R. § 17.161(d).  Class II(c) eligibility is for Veterans who were prisoners of war.  38 U.S.C.A. §§ 1712(a)(1)(F); 38 C.F.R. § 17.161(e).  Class IIR (retroactive) eligibility is for Veterans who applied for and received VA treatment for noncompensable dental conditions but were denied replacement of missing teeth lost during any period of service prior to the last period.  38 C.F.R. § 17.161(f).  

Class III eligibility is for Veterans having a dental condition professionally determined to be aggravating, having a direct and material detrimental effect, on an associated service-connected disability.  38 U.S.C.A. § 1712(a)(1)(D); 38 C.F.R. § 17.161(g).  Class IV eligibility is for Veterans with service-connected disabilities rated at 100 percent schedularly or by reason of individual unemployability.  38 U.S.C.A. § 1712(a)(1)(G); 38 C.F.R. § 17.161(h).  Class V eligibility is for Veterans who participate in a rehabilitation program under 38 U.S.C. chapter 31 and meet other requirements (professional determination of necessity per 38 C.F.R. § 17.47(g)).  38 C.F.R. § 17.161(i).  Finally, Class VI eligibility is for Veterans with a dental condition clinically determined to be complicating a medical condition for which he or she is scheduled for admission or otherwise receiving care in a VA hospital, nursing home, or domiciliary under 38 U.S.C. chapter 17.  38 U.S.C.A. § 1712(a)(1)(E); 38 C.F.R. § 17.161(j).
Here, as the Veteran's upper teeth (#1-16) were replaced by dentures during service, they constitute replaceable missing teeth.  Service treatment records document the following.  No dental condition was noted during the Veteran's late October 1953 entrance examination.  It indeed was noted that an examination by a qualified dental professional was not performed.  Four days later, also in October 1953, such a professional determined that the Veteran needed full upper dentures.  No reason for this determination, whether chronic periodontal disease or otherwise, was set forth.  Extraction of the involved teeth began in early November 1953, and the first set of dentures was inserted in January 1954.  The extractions had already occurred when the Veteran reached 180 days of service, in other words.  His upper teeth, even if normal upon entry in service, were extracted too soon for service connection for treatment purposes to be automatic, in other words.

The Veteran nevertheless still may be found eligible for such treatment.  He does not have a service-connected dental condition, per the determination above.  Even if he did, this condition would not be compensable.  A 0% rating is assigned for loss of teeth where there is a suitable prosthesis.  38 C.F.R. § 4.150, Diagnostic Code 9913.  This includes the Veteran's dentures.  He accordingly is not Class I eligible for treatment.  He also is not Class II(b), Class II(c), Class IIR, Class III, Class IV, Class V, or Class VI eligible for treatment.  Indeed, there is no indication from the Veteran or otherwise that he is homeless, qualifies as an enrolled Veteran, was a prisoner of war, received any previous treatment, is service-connected for any disability, participates in a rehabilitation program, or is scheduled for or receives care at a VA hospital, nursing home, or domiciliary.

That leaves Class II and Class II(a).  Regarding Class II, the Veteran's character of separation was honorable.  He served for approximately two years, which is well over 180 days.  It is reiterated that service treatment records show all his upper teeth (#1-16) were replaceable missing teeth at the time of his separation in October 1955.  The Veteran submitted a statement in December 1955, two months after his separation, requesting to be seen for a checkup and to have one of his teeth fixed.  He did not specify which tooth.  Even if this statement could be construed as a timely application with respect to his upper teeth (#1-16), he did not have a dental examination within 14 months of his separation.  He has not contended that this was through no fault of his own.  All indications rather are that he was at fault.  A January 1956 letter advised the Veteran that more information was needed to determine his entitlement to dental treatment.  He failed to respond to it.

Regarding Class II(a), the Veteran does not contend that he suffered any combat wounds during service.  He instead contends that he suffered service trauma which resulted in all of his upper teeth (#1-16) being extracted and replaced by dentures.  Specifically, a March 2009 VA treatment record contains his statement that his teeth were knocked out by a drill instructor during boot camp.  The Veteran noted the same in December 2012.  At the October 2012 and October 2015 hearings, he testified that a drill instructor purposely hit him in the face with a rifle butt during boot camp.  He additionally testified that he did as told in not reporting the incident and that he sought treatment, which included stopping the bleeding and pulling his teeth.  The Veteran finally indicated in October 2009 that he was assaulted and thrown 20 feet into a fire extinguisher by a drill instructor.

There is no indication that the Veteran has any sort of medical background.  So, he is a lay person.  A lay person is competent to report personal experiences.  Layno v. Brown, 6 Vet. App. 465 (1994).  The Veteran's aforementioned reports are competent since he simply is relating his own experiences during service.  Their credibility is gauged by factors such as bias, interest, desire for monetary gain, inconsistency, implausibility, bad character, malingering, and witness demeanor.  Pond v. West, 12 Vet. App. 341 (1999); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995); Cartright v. Derwinski, 2 Vet. App. 24 (1991).  No indication of bias, bad character, or malingering exists.  That a drill instructor caused an injury which led to the loss of the Veteran's upper teeth (#1-16) during boot camp further is plausible.

As observed by the undersigned at the October 2015 hearing, the Veteran's demeanor conveyed his honesty.  The recount he gave during his testimony (being hit by the butt of a rifle) is largely consistent with one exception.  No significant difference indeed is found between indicating that the teeth were knocked out and indicating that there was an injury which required the teeth to be extracted.  The one exception, the October 2009 recount of the injury resulting from being thrown 20 feet into a fire extinguisher, stands alone.  It never was repeated, in other words, whereas the Veteran repeated being hit by the butt of a rifle or similar on many occasions.  He also always has maintained that a drill instructor caused the injury.  Service treatment records do not reveal any inconsistencies in these regards.

That no reason was given in the service treatment records for the Veteran needing full upper dentures is reiterated.  His recount therefore remains a possibility.  Further reiterated is that only four days passed between his entrance examination, during which he was not examined by a dental professional, and such a professional determining he needed full upper dentures.  However, boot camp occurs at the beginning of service.  The Veteran's account once again remains possible.  He lastly is interested in that this determination could result in monetary gain via the provision of free treatment.  However, these credibility factors appear to be outweighed by the aforementioned.  The benefit of the doubt in this regard, in sum, is resolved in the Veteran's favor.  Service connection for treatment purposes, specifically Class II(a) eligibility for such treatment with respect to the upper teeth (#1-16), is granted.  


ORDER

Service connection for a dental condition for compensation purposes is denied.

Service connection for a dental condition for treatment purposes, specifically Class II(a) eligibility for such treatment with respect to the upper teeth (#1-16), is granted.




____________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs