Citation Nr: 1616717 Decision Date: 04/27/16 Archive Date: 05/04/16 DOCKET NO. 11-20 136 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for a dental disability to teeth numbered 7 and 8, for the purpose of obtaining VA compensation. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active duty service from July 1978 to February 1972 in the United States Navy. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The veteran requested a hearing before a Veterans Law Judge at the RO (Travel Board hearing) in his July 2011 substantive appeal (VA Form 9). However, he failed to report for the hearing scheduled in May 2012. He has not explained his absence or requested to reschedule the hearing. Therefore, the Board hearing request is considered withdrawn. See 38 C.F.R. § 20.704(d) (2015). A review of the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS) reveals a March 2016 Brief Presentation from the Veteran's representative. The issue of entitlement to service connection for a dental condition for treatment purposes only has been raised by the record, but does not appear to have been adjudicated by the Agency of Original Jurisdiction (AOJ). See March 2011 Notice of Disagreement (NOD); July 2011 VA Form 9; October 2011 Veteran's statement. In this regard, a claim for service connection for a dental disability on a compensable basis is also considered to be a claim for VA outpatient dental treatment. Mays v. Brown, 5 Vet. App. 302, 306 (1993). At the very least, what is apparent from the record is that the Veteran is requesting VA dental treatment as reasonably necessary for the correction of a noncompensable dental condition due to in-service trauma, without the usual restrictions of timely application and one-time treatment. See 38 C.F.R. § 17.161(c) (this is referred to as "Class II(a)" eligibility). Therefore, the Board does not have jurisdiction over the noncompensable dental treatment claim, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). Specifically, the AOJ should refer the claim for VA dental treatment to the appropriate VA Medical Center/VHA dental clinic for a determination of eligibility. See 38 C.F.R. § 3.381(a) (2015). In referring the dental treatment claim, as noted in the remand below, even though certain dental STRs may be missing, please note that the Board finds the Veteran credible in his description of in-service dental trauma in April 1971 to teeth numbered 7 and 8, necessitating the need for the placement of ceramic crowns on those teeth during service. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND First, the Veteran must be scheduled for a VA dental examination and medical opinion regarding the nature and etiology of the Veteran's current dental disorder to teeth numbered 7 and 8. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2) (West 2014); 38 C.F.R. § 3.159(c)(4) (2015). In this regard, under VA regulation, a detailed report of dental examination is essential for a determination of eligibility for those veterans requiring examination to determine whether a dental disability is service-connected. See 38 C.F.R. § 17.160(a). In his original February 1972 claim for service connection, the Veteran indicated that he injured his "front teeth" from a fall on a ladder in April 1971 during service. Subsequently, the Veteran has clarified that he damaged teeth numbered 7 and 8 during a fall in-service in April 1971 while serving on the USS Van Voorhis. See March 2011 NOD; July 2011 VA Form 9; October 2011 Veteran statement. As a result, temporary crowns and then permanent ceramic crowns were placed on teeth numbered 7 and 8 in August 1971 and September 1971 during service. See STR dental records. At present, the Veteran is reporting trouble with these crowns, and believes the resulting disability is compensable. Thus, a VA dental examination is necessary. Second, remand is required for additional VCAA notice. Since there is some evidence of record suggesting that STR dental records dated from April 1971 to June 1971 may be missing (see e.g., February 1972 original dental claim), VCAA notice is required that specifically addresses alternative sources of evidence the Veteran may submit in lieu of his potential missing STRs. In this regard, VA has failed to inform the Veteran of what kind of substitute or alternative evidence he could submit in order to support his claims. When service records are lost or missing or destroyed, in conjunction with a heightened duty to assist, VA must inform the Veteran that he can submit "alternative" sources in place of his missing service records. See Washington v. Nicholson, 19 Vet. App. 362, 369-370 (2005); see also Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992). Examples of such alternate evidence include the VA military files, statements from service medical personnel, "buddy" certificates or affidavits, state or local accident and police reports, employment physical examination reports, medical evidence from civilian/private hospitals, clinics, and physicians where or by whom a Veteran was treated, either during service or shortly after separation, letters written during service, photographs taken during service, pharmacy prescription records, and/or insurance examinations reports. See VA Adjudication Procedure Manual, M21-1, Part III, Subpart iii, Chapter 2, Section E, Topic 2, Block b. Thus, a remand is required for the AOJ to provide the Veteran with a VCAA letter advising the Veteran of what alternative evidence he can submit in place of any potential missing dental service records. Third, the AOJ has already secured the Veteran's STRs, to include his dental STRs. However, the Veteran says he was treated onboard the USS Van Voorhis in sick bay for a dental injury in April 1971, and then was treated at military dental clinics in Annapolis, Maryland, and Newport, Rhode Island from April 1971 to June 1971. These potential additional dental STRs, if they exist, are not present in the claims folder, and may be relevant to the dental claim at issue. On remand, it is essential for the AOJ to make every effort to obtain any potential missing dental STRs dated from April 1971 to June 1971 from the National Personnel Records Center (NPRC), Records Management Center (RMC), or at other appropriate locations, and to document such development for the file. Fourth, as the appeal is already being remanded for other reasons, the Board sees the Veteran's VA treatment records on file date to August 2011. If the Veteran has since received additional relevant VA dental treatment, these records should be obtained. VA's duty to assist includes obtaining records of relevant VA medical treatment. 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2), (c)(3). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is charged with constructive, if not actual, knowledge of evidence generated by VA). Accordingly, the case is REMANDED for the following action: 1. The AOJ should send the Veteran a corrective VCAA notice letter notifying the Veteran that he can submit alternative sources in place of his alleged potential missing dental STRs dated from April 1971 to June 1971. This letter should advise him that such alternate evidence includes VA military files, statements from service medical personnel, buddy certificates or affidavits, state or local accident and police reports, employment physical examination reports, medical evidence from civilian/private hospitals, clinics, and physicians where or by whom he was treated, either during service or shortly after separation, letters written during service, photographs taken during service, pharmacy prescription records, and/or insurance examinations reports. See VA Adjudication Procedure Manual, M21-1, Part III, Subpart iii, Chapter 2, Section E, Topic 2, Block b. 2. The AOJ should contact the NPRC, RMC, or any other appropriate facility and attempt to obtain any additional dental STRs dated from April 1971 to June 1971. The Veteran says he was treated onboard the USS Van Voorhis in sick bay for a dental injury in April 1971, and then was treated at military dental clinics in Annapolis, Maryland, and Newport, Rhode Island from April 1971 to June 1971. These potential additional dental STRs, if they exist, are not present in the claims folder, and may be relevant to the dental claim at issue. All attempts to secure any additional clinical dental STRs must be documented in the claims file. If no clinical dental records are available or further attempts to secure them would be futile, a response to the effect should be documented in the claims file. 3. The AOJ should obtain VA treatment records from the Canandaigua VA Medical Center (VAMC) and the VA Rochester Outpatient Clinic (OPC) dated from August 2011 to the present, and associate them with the claims file. All attempts to secure these records, and any response received, must be documented in the claims file. If no records are available, a response to that effect is required and should be documented in the file. 3. After any additional records, including potential additional dental STRs and VA treatment records, are associated with the claims file, the AOJ should schedule the Veteran for a VA dental examination by an appropriate clinician to determine the etiology of his current dental disorder to teeth numbered 7 and 8. Access to the claims file must be made available to the examiner for review. The examination should include any diagnostic testing or evaluation deemed necessary, including X-ray testing if necessary. The Veteran must be interviewed. The examiner must provide a clear rationale for the opinion, to include any comment on any credibility issues raised by the record from a medical perspective. THE VA EXAMINER MUST RESPOND TO THE FOLLOWING INQUIRIES: (a) Initially, for purposes of answering the questions below, the VA examiner is advised that even though certain dental STRs dated from April 1971 to June 1971 may be missing, the Board finds the Veteran credible to the extent of his description of in-service dental trauma in April 1971 to teeth numbered 7 and 8, necessitating the need for ceramic crowns in August and September of 1971 during service. (b) Does the Veteran have loss of any teeth due to loss of substance of the body of the maxilla or mandible without loss of continuity? If so, the examiner must also address whether there is any lost masticatory surface for any tooth, and indicate whether it is restorable by suitable prosthesis. (c) Does the Veteran have nonunion or malunion of the mandible, loss of the mandible, loss of whole or part of the ramus, loss of the condyloid process, or loss of any part of the hard palate? (d) If the Veteran has any of the above compensable dental disabilities, please state whether it is at least as likely as not (i.e., 50 percent or more probable) that they either began during his Navy service or developed thereafter as the result of his credible in-service trauma in 1971 to teeth numbered 7 and 8 or in-service malpractice/negligence or as the result of in-service disease such as osteomyelitis? (e) In rendering the above opinions, the examiner must consider and address the following evidence: * In his original February 1972 claim for service connection, the Veteran indicated that he injured his "front teeth" from a fall on a ladder in April 1971 during service. Subsequently, the Veteran has clarified that he damaged teeth numbered 7 and 8 during a fall in-service in April 1971 while serving on the USS Van Voorhis. See March 2011 NOD; July 2011 VA Form 9; October 2011 Veteran statement. As a result, temporary and then permanent ceramic crowns were placed on teeth numbered 7 and 8 in August 1971 and in September 1971 during service. See STR dental records. At the present time, the Veteran is reporting trouble with these crowns on teeth numbered 7 and 8. * STRs also document that the Veteran underwent military dental examinations at enlistment in March 1968 and upon discharge in January 1972. These dental examinations should be reviewed. STR dental treatment notes dated in August 1971 and September 1971 also reveal that temporary and then permanent ceramic crowns were placed on teeth numbered 7 and 8. A December 1971 STR dental treatment note also indicates that additional treatment of some sort was performed on tooth number 7. * Post-service, the Veteran underwent VA outpatient dental clinic treatment in February 1972, July 1972, August 1972, and sometime in 1973. Various teeth were noted to be missing, extracted, impacted, erupted, or crowned. Fillings were also noted. * Post-service, a VA dentistry consult dated in August 2010 documents missing teeth, restored teeth, and crowns on teeth numbered 4, 7, 8, and 15. 4. The AOJ should notify the Veteran that it is his responsibility to report for any scheduled VA examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for any scheduled VA examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. After completing the above development, the AOJ should review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the issue of service connection for a dental disability to teeth numbered 7 and 8, for the purpose of obtaining VA compensation. If the benefit sought is not granted, issue a Supplemental Statement of the Case and allow the Veteran and his representative an opportunity to respond. 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). 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 2014). _________________________________________________ T. MAINELLI 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).