Citation Nr: 1702313	
Decision Date: 01/27/17    Archive Date: 02/09/17

DOCKET NO.  13-35 983	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

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

2.  Entitlement to service connection for a noncompensable dental disability for the purpose of obtaining VA outpatient dental treatment under 38 C.F.R. § 17.161.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

Appellant and observer



ATTORNEY FOR THE BOARD

R. Erdheim, Counsel 


INTRODUCTION

The Veteran had active service from December 1944 to November 1946.  His awards include the Purple Heart and Combat Infantryman's Badge.  

This matter came before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the RO Nashville, Tennessee.  In November 2016, the Veteran testified before the Board via videoconference.  

Because a claim for service connection for a dental condition for purposes of compensation must also be considered to be a claim for service connection for a dental disability for purposes of VA outpatient dental treatment, the Board has phrased the issues as stated on the title page. See Mays v. Brown, 5 Vet. App. 302 (1993).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  Compensation is not available for loss of teeth due to dental trauma, residuals related thereto, or for any other dental disability.

2.  The Veteran is entitled to outpatient treatment for teeth #8, #9, #10, and # 25 as a result of in-service trauma.

CONCLUSIONS OF LAW

1.  The criteria for service connection for a dental disability 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, 3.303, 3.381, 4.150 (2016).

2.  The criteria for service connection for a noncompensable dental disorder for purposes of receiving VA outpatient dental treatment (Class II(a) eligibility) have been met.  38 U.S.C.A. §§ 1712, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.381, 4.150, 17.161 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

The Veteran contends that he incurred dental trauma in service when he was hit in the face and mouth with a rifle during training maneuvers while stationed in the Philippines at the end of World War II. 

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303 (a).  Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303 (d). 

In the VA benefits system, dental disabilities are treated differently than medical disabilities.  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.  Missing teeth may be compensable under 38 C.F.R. § 4.150, Code 9913 for "loss of teeth, due to loss of substance of body of maxilla or mandible without loss of continuity."  A Note following Diagnostic Code 9913 explains that these rating apply only to bone loss through trauma or disease such as osteomyelitis, and not to the loss of the alveolar process as a result of periodontal disease, since such loss is not considered disabling.  

Service treatment records reflect that on entry into service, the Veteran was noted to be missing his top wisdom teeth.  On both entry and exit from service, he was noted to have restorable carious teeth at tooth #6 on the top right and tooth #4 on the top left, as well as teeth #16 on both the right and left on the bottom.  It was noted on October 1946 separation examination that there were no mouth or gum abnormalities.

On December 2011 VA examination, the Veteran was diagnosed with partial edentulism of the maxilla and mandible and dental carries.  It was noted that teeth #8 and #9 had large composite restorations.  Tooth #10 had a root canal, post/core, and crown, and tooth #25 had a large composite restoration.  It was noted that the Veteran did not lose any teeth due to his injury while in service.  The examiner concluded that it was at least as likely as not that teeth #8, #9, #10, and #25 were injured as a result of being hit in the face with a rifle.  

Here, while the evidence reflects a diagnosis of partial edentulism of maxilla and mandible, the evidence does not demonstrate a loss of teeth due to loss of substance of the body of the maxilla or mandible due to trauma or disease.  The service records do not indicate that the Veteran suffered from loss of substance of the body of the maxilla or mandible following his reported injury in service.  Rather, the service separation examination shows no abnormality of the mouth or gums.  Moreover, the VA examiner diagnosed partial edentulism of the maxilla and mandible, a condition that results from the loss of teeth.  Such condition is not contemplated by the rating code and is not considered to be a service-connected disability for compensation purposes.  See 38 C.F.R. § 4.150, Code 9913.  Further, no residuals or other dental disabilities have been diagnosed which may be subject to service connection for compensation purposes.  As the Veteran has not been diagnosed with a dental disability for which service connection may be granted, the claim for service connection for a dental disorder for compensation purposes must be denied as a matter of law.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 

However, the Board finds that entitlement to service connection for a noncompensable dental disability for the purpose of obtaining VA outpatient dental treatment under 38 C.F.R. § 17.161 is warranted.

Disability compensation and VA outpatient dental treatment may be provided for certain specified types of service-connected dental disorders.  For other types of service-connected dental disorders, the claimant may receive treatment only and not compensation.  38 U.S.C.A. § 1712; 38 C.F.R. §§ 3.381, 4.150, 17.161.   

Those Veterans having a service-connected, noncompensable dental condition or disability adjudicated as resulting from combat wounds or service trauma (Class II(a)) may be authorized any treatment indicated as reasonably necessary for the correction of such service-connected noncompensable condition or disability.  See 38 C.F.R. § 17.161 (c).  Replaceable missing and broken (fractured) teeth may be considered service connected solely for the purposes of determining entitlement to dental examination(s) or outpatient dental treatment.  See Simington v. West, 11 Vet. App. 41 (1998).  Trauma, as defined for purposes of dental treatment eligibility, connotes damage caused by the application of sudden, external force, brought to bear outside a clinical setting; for these purposes, the term "service trauma" does not include the intended effects of therapy or restorative dental care and treatment provided during a Veteran's military service.  38 C.F.R. § 3.306 (b)(1); VAOGCPREC 5-97 (1997); see also Nielson v. Shinseki, 607 F.3d 802 (2010) (holding that "service trauma" in 38 U.S.C. § 1712 (a)(1)(C) means an injury or wound produced by an external physical force during the service member's performance of military duties; this definition excludes the intended result of proper medical treatment and psychological stress not the result of malpractice).

Under 38 C.F.R. § 3.381, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are to be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment as provided in 38 C.F.R. § 17.161.

Here, the December 2011 VA examiner determined that the Veteran's dental injuries to teeth #8,# 9, #10 and #25 were at least as likely as not caused or a result of being hit in the face with a rifle during service.  The Board concludes that this type of dental trauma is contemplated by 38 C.F.R. § 17.161 (c).  The Veteran has provided credible testimony as to the in-service injury, and the 2011 VA examiner provided a competent and probative medical opinion on the matter.

Thus, the criteria for establishing service connection for a noncompensable dental disorder for purposes of receiving VA outpatient dental treatment under Class II(a) eligibility have been met.  As the Veteran is entitled to Class II(a) eligibility, he may be authorized for any treatment indicated as reasonably necessary for the correction of this service-connected noncompensable condition or disability.  See 38 C.F.R. § 17.161 (c).


ORDER

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

Service connection for a noncompensable dental disability for purposes of receiving VA outpatient dental treatment (Class II(a) eligibility), for teeth #8, #9, #10, and #25 is granted.



____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs