Citation Nr: 1702385	
Decision Date: 01/27/17    Archive Date: 02/09/17

DOCKET NO.  13-11 166	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to service connection for dental trauma, to include loss of bone density (also claimed as secondary herbicide exposure) for compensation purposes.


WITNESSES AT HEARING ON APPEAL

Appellant and spouse


ATTORNEY FOR THE BOARD

T.Y. Hawkins, Counsel


INTRODUCTION

The Veteran had honorable active duty service in the Army from June 1968 to June 1971, including service in the Republic of Vietnam.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.  

In November 2013, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a Board video conference hearing.  A transcript of the hearing has been associated with the claims folder.  

In April 2014 and September 2015, the Board remanded the Veteran's claim to the Agency of Original Jurisdiction (AOJ) for additional development.  As there has been substantial compliance with the Board's remand directives, the Board finds there is sufficient evidence to adjudicate the claim.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).


FINDING OF FACT

The Veteran does not experience bone loss in the maxilla or mandible as a result of non-periodontal disease or dental trauma; rather, he has periodontal disease and has experienced tooth loss, which does not qualify as a dental disability for VA compensation purposes.


CONCLUSION OF LAW

The criteria for service connection for a dental trauma, to include loss of bone density for compensation purposes, have not been met.  38 U.S.C.A. §§ 1110, 1712, 5107(b) (West 2014); 38 C.F.R. §§ 3.102 , 3.303, 3.381, 4.150, 17.161 (2016).
  

REASONS AND BASES FOR FINDING AND CONCLUSION

Analysis

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

In order to establish a right to compensation for a present disability, a veteran must show:  "(1) the existence of a present disability; (2) the in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).   

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  See Degmetich v. Brown, 104 F. 3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

The Veteran claims that suffered from a loss of bone density in the upper (maxilla) and lower (mandible) jaw following service in Vietnam and says that the loss of density caused him to lose all of his teeth.  He specifically asserts that being exposed to tactical herbicides, such as Agent Orange, in Vietnam resulted in the loss of bone density.  In a January 2011 statement, he reported that "[i]n 1972 [he] had to have all eight front teeth plus five others pulled, not due to decay, but due to deterioration of bone."  He said that the records of such extractions have been destroyed and, thus, are unavailable for review.

VA regulations provide presumptive service connection on the basis of herbicide exposure for specified diseases manifested to a degree of 10 percent or greater within a specified period in a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975.  They also provide presumptive service connection on the basis of herbicide exposure for each additional disease that the Secretary of the Veterans Affairs (the "Secretary") determines warrants a presumption of service connection by reason of having a positive association with exposure to an herbicide agent, and that becomes manifest within the period (if any) prescribed in such regulations in a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975.  38 U.S.C.A. § 1116(f) (West 2014); 38 C.F.R. § 3.307(a)(6)(iii) (2016).

As noted above, the Veteran has verified service within Vietnam.  He is therefore presumed to have been exposed to herbicides, such as Agent Orange.  However, the Secretary has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted.  See Notice, 59 Fed. Reg. 341-46 (1994); see also Notice, 61 Fed. Reg. 41,442-449 (1996).  While there are several diseases presumed to have been caused by herbicide exposure, such as type II diabetes mellitus and prostate cancer, the Secretary has not found no positive association between herbicide exposure and dental or loss of bone density disorders.

Notwithstanding the foregoing presumptive provisions, the Federal Circuit has determined that the "Veteran's Dioxin and Radiation Exposure Compensation Standards Act" does not preclude a veteran from establishing service connection with proof of actual direct causation.  See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).  Thus, under Combee, presumption is not the sole method for showing causation, and thereby establishing service connection.  See also Stefl v. Nicholson, 21 Vet. App. 120 (2007).

Pursuant to VA laws and regulations, compensation is only available for certain types of dental and oral conditions, for example, as a result of trauma or disease, such as osteomyelitis; osteoradionecrosis; loss, malunion or limited motion of the mandible, maxilla, ramus, condyloid process, or hard palate; or loss of substance of the maxilla or mandible.  38 C.F.R. § 4.150 (2016).  Otherwise, such loss is not considered disabling for VA compensation purposes.  

In a precedent opinion, VA's General Counsel held that dental treatment of teeth during service, to include extractions, does not constitute dental trauma. VAOPGCPREC 5-97 (1997), 62 Fed. Reg. 15, 566 (1997). 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 and cannot be considered for compensation purposes.  38 U.S.C.A. § 1712  (West 2014); 38 C.F.R. §§ 3.381, 4.150 (2016).

Thus, in order to prevail on his claim for service connection, the evidence must show that trauma has caused a loss of substance of the body of the maxilla or mandible, resulting in a loss of teeth; or, disease (such as osteomyelitis, but not periodontal disease) has caused a loss of substance of the body of the maxilla or mandible, resulting in a loss of teeth.

Service treatment records reflect that upon entry into service in July 1968, he was missing no teeth other than three wisdom teeth.  His condition was otherwise normal on dental examination.  Periodontal charting records in February 1970 revealed excessive periodontal disease and bone loss around the teeth.  An April 1971 treatment note identified chronic periodontics "with extensive bone destruction in numerous areas," and further treatment notes described the Veteran as a "very questionable case" with poor oral hygiene habits.  There are no records evidencing any type of dental trauma.

Although the Veteran was advised of the evidence needed to substantiate his claim, he provided no post-service VA or private dental treatment records, or the names of dentists who treated him.  While VA attempted to obtain Social Security Administration (SSA) records to determine if had been treated for a dental disorder, the SSA reported that no treatment records were available.

In January 2016, the Veteran was afforded a VA oral and dental conditions examination.  He reported that his dental disorder began following enlistment into service, at which time, he had no cavities or fillings.  He said that in 1970, he noticed that his gums were bleeding and his teeth were getting loose.  Thereafter, an oral surgeon treated him for pain, removed 14 teeth and scraped bone due to bone loss to try to stop the progression of bone deterioration.  He said that the condition got worse and he got partial dentures, but still had progressive bone and tooth loss.  The examiner noted the February 1970 and April 1971 records that showed excessive and chronic periodontal disease and with bone loss around the teeth and extensive bone destruction in numerous areas.  Panographic dental x-rays to demonstrate loss of teeth, mandible or maxilla were within normal limits.  There was no evidence of anatomical loss or bony injury of any portion of the mandible or maxilla, malunion or nonunion of mandible or maxilla, loss of teeth (for reasons other than periodontal disease), temporomandibular joint disorder (TMJD), limitation of motion of the temporomandibular joint due to causes other than TMJD, anatomical loss or injury of the mouth, lips or tongue, osteomyelitis or osteoradionecrosis of the mandible or oral neoplasm.  The only diagnosed disorder was periodontal disease.  Although the examiner erroneously marked the box on the examination form indicating that the claimed condition was at least as likely as not incurred in, or caused by service, his rationale was that the February 1970 periodontal charting indicated extensive periodontal disease and bone loss around teeth, and the April 1971 examination report showed that the Veteran had chronic periodontics with extensive bone destruction in numerous areas.  However, as noted above, periodontal disease is not considered a disability for purposes of VA compensation.

Accordingly, based on a review of the complete evidence of record, the Board finds that service connection for dental trauma, to include loss of bone density, also claimed as secondary to herbicide exposure for compensation purposes, is not applicable because the Veteran does not have a dental disability for which service connection can be granted.  See Brammer v. Derwinski, supra.  The evidence does not show a dental disability due to trauma.  In addition, there is no probative evidence suggesting any relationship between the Veteran's exposure to herbicide agents and the subsequent development of a dental disability.  Accordingly, service connection for compensation purposes is denied.


ORDER


Service connection for dental trauma, to include loss of bone density (also claimed as secondary herbicide exposure) for compensation purposes, is denied.


____________________________________________
M. TENNER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs