Citation Nr: 1624260 Decision Date: 06/16/16 Archive Date: 06/29/16 DOCKET NO. 08-32 272 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a dental condition for compensation purposes. 2. Entitlement to service connection for asthma. WITNESSES AT HEARINGS ON APPEAL The Veteran and A.J. ATTORNEY FOR THE BOARD M. Lavan, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1977 to July 1983. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. Jurisdiction has been transferred to the RO located in Philadelphia, Pennsylvania. As previously noted, the Veteran testified at a Board hearing in 2010 before a Veterans Law Judge, who thereafter retired from the Board. The Veteran was notified of that fact in June 2012 and given an opportunity to have another hearing. In August 2012, the Board remanded the case and instructed the RO to contact the National Personnel Records Center (NPRC) to locate all records in their possession for the Veteran. However, the Board had missed the Veteran's reply requesting a second hearing, so, the case was again remanded in November 2015 for a hearing before a Veterans Law Judge. In April 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. Transcripts of this proceeding and the prior hearing in 2010 are associated with the claims file. The issue of entitlement to service connection for a dental disability for treatment purposes has been raised by the record, but this issue does not appear to have been adjudicated. Therefore, the Board does not have jurisdiction over it, and it is referred to the RO for appropriate action. Specifically, the RO should refer the claim for dental treatment to the appropriate VA Medical Center. The issue of service connection for asthma is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran did not sustain dental trauma during service resulting in bone loss of the maxilla or mandible. 2. The Veteran did not have periodontal disease or symptoms related thereto during service resulting in bone loss of the maxilla or mandible. CONCLUSION OF LAW The criteria for establishing service connection for a dental disorder for compensation purposes are not met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107, 7104 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.381, 4.150 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service Connection Laws and Regulations 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). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires 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). Before deciding a claim, the Board is required to evaluate all relevant evidence of the record on appeal, including lay and medical evidence. See 38 U.S.C.A. § 7104(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. Lay evidence may be competent and sufficient to establish a claim for service connection. Specifically, lay evidence may be sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Moreover, a layperson is competent to report the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (holding that a veteran is competent to report on that of which he or she has personal knowledge). The Board must then determine whether the evidence is credible or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of the relevant evidence, the Board must then weigh its probative value. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis of Dental Condition Claim The Veteran contends that his dental condition is related to service. Specifically, at the April 2016 Board hearing, the Veteran alleged that his mouth was injured during martial arts training and a cap was placed on his tooth in service. He stated that the teeth next to his prosthetic tooth became chipped and the cap later fell out, but he reported that he did not have gum disease. The Veteran reported that he filed for service connection because he wanted dental care. The dental conditions for which service-connected compensation benefits are available are set forth under 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. The regulation governing dental claims makes a fundamental distinction between "replaceable missing teeth" (see 38 C.F.R. § 3.381(a)), and teeth lost as a result of loss of substance of body of maxilla or mandible due to trauma or disease such as osteomyelitis, and not loss of the alveolar process as a result of periodontal disease. See 38 C.F.R. § 4.150; Simington v. West, 11 Vet. App. 41, 44 (1998). Absent a demonstration of dental trauma, service connection may be considered solely for the purpose of determining entitlement to dental examinations or outpatient dental treatment. See Woodson v. Brown, 8 Vet. App. 352, 354 (1995). The U.S. Court of Appeals for Veterans Claims (Court) has specifically held that a claim for service connection for a dental disorder is also a claim for VA outpatient dental treatment. See Mays v. Brown, 5 Vet. App. 302 (1993). Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease will be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment as provided in 38 C.F.R. § 17.161. 38 C.F.R. § 3.381(a). Service records from July 1981 show that the Veteran had a prosthesis on tooth number eight. They do not show any other dental treatment. The Veteran waived his right to a separation examination in July 1983 and the reviewing physician determined that an examination was not necessary. Private medical records from October 2000 show that the Veteran had a right lower molar that was eroded, carious, and tender with minimal gingival redness and swelling. There was no pus draining. The treating RN noted that the patient had extremely poor dental hygiene and that the lower molar was half gone. The Veteran's VA medical records are associated with the record. In August 2005, the Veteran presented to the clinic with generalized mouth pain. An examination showed multiple fractured teeth and retained root tips. In September 2005, the Veteran had multiple teeth extracted. In May 2009, the Veteran presented for throbbing, intermittent pain in the lower left quadrant of his mouth. A clinical and radiographic examination showed carious teeth for numbers 17, 18, and nonrestorable teeth for numbers 14 and 19. The Veteran chose to save all restorable teeth and return to have numbers 14 and 19 extracted in the future. In July 2010, the Veteran presented for pain in the lower left posterior region. A dental examination revealed that five teeth were missing and tooth number 17 had caries involving the pulp. The Veteran was diagnosed with irreversible pulpitis. The Board finds that the weight of the evidence demonstrates that the Veteran did not sustain dental trauma during service resulting in bone loss of the maxilla or mandible, nor did he have periodontal disease or symptoms related thereto during service resulting in bone loss of the maxilla or mandible. Rather, the Veteran testified that the in-service incident necessitated a cap placed on one tooth. Service records from July 1981 show that prosthesis was placed on tooth number eight. No bone loss of the maxilla or mandible is shown at any time. The evidence of record does not show a dental condition for which service-connected compensation benefits are available; therefore the claim must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. To the extent to which the Veteran seeks service connection for dental treatment, this matter has been referred above to the appropriate agency for adjudication. Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has a duty to notify and assist claimants. VA's duty to notify was satisfied by a letter sent in January 2006. See 38 U.S.C.A. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA also has a duty to assist a veteran in obtaining evidence necessary to substantiate a claim, which includes providing an adequate medical examination or opinion when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that VA has satisfied its duty to assist regarding the Veteran's claim. The claims file contains the Veteran's service treatment records, VA and private medical treatment evidence, and the Veteran's statements. The Veteran was not afforded a VA examination for his dental condition compensation claim. VA is obligated to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the record contains sufficient evidence upon which to make a decision, including the Veteran's statements, current medical records, and service treatment records. Additionally, the record does not contain competent evidence that the Veteran has a compensable current disability that can be related to service. Specifically, the Veteran's service records and lay statements do not indicate that he experienced the requisite trauma to warrant compensation and his medical records do not show that any current dental conditions are related to the claimed in-service incident. Therefore, even under the low threshold of McLendon, an examination is not warranted. The Veteran provided testimony at Board hearings in October 2010 and April 2016. During such a hearing, a Veterans Law Judge has a duty to fully explain the issues and suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). In the present case, the Veterans Law Judges clearly set forth the issues to be discussed, sought to identify pertinent evidence not currently associated with the claims folder, and elicited further information as to the dates and locations of treatment when appropriate. The hearings focused on the elements necessary to substantiate his claims and the Veteran demonstrated his actual knowledge of the elements necessary to substantiate his claim. The Board finds that VA complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and Bryant. Finally, all due process considerations have been met. The RO issued a supplemental statement of the case in August 2015 and no new material evidence has been received since that time. ORDER Entitlement to service connection for a dental disorder for compensation purposes is denied. REMAND This matter must be remanded to obtain an adequate medical opinion that complies with the August 2012 Board remand. A Board remand confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Id. In August 2012, the Board instructed the RO to locate outstanding medical records. If new records were obtained, the RO was instructed to request an updated VA opinion for the Veteran's claimed asthma disorder. In May 2015, outstanding medical treatment records were obtained, but an updated VA opinion was not. Accordingly, the case is REMANDED for the following action: 1. Forward the Veteran's claims folder to the examiner who issued the October 2009 medical opinion for an addendum opinion. If the examiner is unavailable, forward the file to another appropriate examiner. The examiner is requested to review the claims folder, to include this remand and newly-generated service treatment records. Unless the examiner finds that a new examination is required, the Veteran need not be examined again. Following review of the claims file the examiner should respond to the following: is it at least as likely as not (a 50 percent probability or greater) that the Veteran's asthma had its onset in service or is otherwise related to an in-service injury or disease? In making this determination, the examiner should consider the Veteran's hospitalization for acute respiratory disease in January 1977. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 2. Thereafter, the AOJ should readjudicate the remaining issue on appeal. If the determination remains unfavorable, the Veteran and his representative, if any, should be provided with a supplemental statement of the case (SSOC). The Veteran and his representative, if any, should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further review. 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 2014). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs