Citation Nr: 1606345 Decision Date: 02/19/16 Archive Date: 03/01/16 DOCKET NO. 13-18 481A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a dental disorder for compensation, including as secondary to the service-connected fibromyalgia, and treatment purposes. 2. Entitlement to compensation under 38 U.S.C.A. § 1151 for additional disability resulting from dental treatment received at the Hampton VA Medical Center (VAMC). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from July 1997 to July 1998. She also served in the United States Army Reserve. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO in Roanoke, Virginia. The issues have been bifurcated as they appear on the cover page of the instant decision. The Veteran presented testimony before the Board in September 2015. In November 2015, the Veteran was notified that the Veterans Law Judge (VLJ) that conducted her September 2015 Board hearing was unavailable to participate in a decision on her appeal and offered the opportunity for another Board hearing before a different VLJ. The Veteran declined the opportunity for a new hearing. See Response received in December 2015. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND A preliminary review of the record reveals the matters are not ready for appellate review. It appears the appellate record is incomplete. Notably, it is unclear whether the complete VA dental records from the Hampton VAMC have been obtained (only records dated between April 1998 and January 1999 are associated with the claims file). It is also unclear whether the complete private dental records from Dr. MWF, Dr. WTT, Dr. RLT, Dr. JWN, and Dr. BY dated between 1998 and the present have been obtained (only sporadic records are associated with the claims file). See August 2010 VA Form, 21-4138. Such records are pertinent to the claims and must be obtained upon Remand. 38 C.F.R. § 3.159(c)(1), (2). The Veteran asserts that her dental condition is the result of her fibromyalgia (due to lowered immune system increasing her risk factors) and/or carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA in providing dental treatment in 1998. The Veteran has not been afforded a VA examination in connection with her claims. Service connection has been established for fibromyalgia. See May 2013 Decision Review Officer Decision. A December 2005 dental record shows the Veteran reported pain in teeth numbers 30 and 31. The provider indicated that "pain may be from fibromyalgia." In December 2006, the Veteran indicated that tooth number 30 still hurt and the dentist noted "(fibromyalgia?)." An examination is necessary to determine the etiology of the claimed dental condition. 38 U.S.C.A. § 5103A. With regard to the claim for compensation under 38 U.S.C.A. § 1151, a February 1998 report of medical examination contained within her service treatment records shows the Veteran had two areas of sensitivity around her teeth. She further noted that she lost her retainer while deployed. No dental condition was noted. VA outpatient dental records dated in April 1998 (prior to her discharge) reveal the Veteran was scheduled for Class II Dental treatment at the Hampton VAMC. In May 1998, the Veteran reported sensitivity along the gum line. Dental carries were discovered in teeth numbers 29 and 30. Amalgam fillings were placed. In June 1998, the Veteran presented with complaints and indicated she wanted her filling to be composite, so her amalgam fillings were replaced. In October 1998, tooth number 30 was debrided for necrotic pulp. A crown was inserted in January 1999. The Veteran alleges that proper precautionary procedures were not observed when removing the amalgam fillings, which led to additional disability including continuous pain, use of antibiotics to treat infection, root canal, bone socket graft, and implant at tooth 30. See VA Form 9 received in July 2013. An examination is necessary to determine whether there was carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA in providing dental treatment in 1998. 38 U.S.C.A. § 5103A. The RO should ensure that all due process requirements are met. The RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claims on appeal. 38 U.S.C.A. § 5103A (b). Accordingly, the case is REMANDED for the following action: 1. Secure for the record copies of the complete updated (since January 1999) VA dental records of all evaluations and treatment the Veteran received for the claimed condition. All requests for records and their responses must be associated with the claims folder. 2. After obtaining the necessary consent, secure for the record copies of the complete dental records of all evaluations and treatment the Veteran received for the claimed condition from Dr. MWF, Dr. WTT, Dr. RLT, Dr. JWN, and Dr. BY dated between 1998 and the present. All requests for records and their responses must be associated with the claims folder. 3. Once the records have been secured, schedule the Veteran for an appropriate VA dental examination to determine the nature and etiology of the claimed dental condition and to assess whether there are any additional disabilities related to dental treatment received at VAMC Hampton for removal of amalgam fillings in June 1998. The examiner should specifically address the following questions: (A) Is it at least as likely as not (50 percent probability or greater) that a dental condition is related to the Veteran's active military service, to include the result of trauma? (B) Is it at least as likely as not (50 percent probability or greater) that a dental condition is proximately due to, the result of, or aggravated by (beyond the natural progression of the disease) the service-connected fibromyalgia? In answering this question, the examiner must make specific reference to December 2005 dental record indicating "pain may be from fibromyalgia" and December 2006 entry noting tooth number 30 still hurt "(fibromyalgia?)." (C) Does the Veteran have additional disability as a result of dental treatment received at VAMC Hampton for removal of amalgam fillings in June 1998 (claimed as continuous pain, use of antibiotics to treat infection, root canal, bone socket graft, and implant at tooth 30)? If so, what is the additional disability? If there is additional disability, is it at least as likely as not (50 percent or greater probability) that any additional disability was (i) caused by carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA in performing dental treatment in 1998, or (ii) was due to an event not reasonably foreseeable? In other words, did any action or inaction by VA caregivers cause additional disability or constitute carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault? If so, did VA fail to exercise the degree of care that would be expected of a reasonable health care provider? ** In determining whether the proximate cause of a disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, please discuss if VA failed to exercise the degree of care that would be expected of a reasonable health care provider. ** In determining whether an event is not reasonably foreseeable, the standard is what a "reasonable health care provider" would have considered to be an ordinary risk of treatment that would be disclosed. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for any opinions expressed and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why such an opinion cannot be provided. 4. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims in light of all evidence of record. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and her representative with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. The Veteran 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). These claims 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 2014). _________________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).