Citation Nr: 1738121 Decision Date: 09/11/17 Archive Date: 09/22/17 DOCKET NO. 04-44 634 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for a dental condition due to trauma, including missing teeth numbers 6 through 10, for compensation purposes, also claimed as secondary to herbicide exposure. REPRESENTATION Veteran represented by: AMVETS ATTORNEY FOR THE BOARD L. Edwards Andersen, Counsel INTRODUCTION The Veteran had active service from May 1969 to July 1970, with subsequent service in the National Guard. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a December 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. A notice of disagreement was received in January 2004, a statement of the case was issued in October 2004, and a VA Form 9 was received in October 2004. On appeal, the Board reopened the issue of entitlement to service connection for a dental condition in an October 2006 Board decision, and remanded the matter for additional development. The matter was again remanded by the Board in July 2009, March 2011, and March 2014. In February 2017, the Board requested an expert medical opinion from the Veterans' Health Administration (VHA). See 38 C.F.R. § 20.901 (2016). A VHA opinion was received in May 2017. As noted in the March 2014 Remand, the United States Court of Appeals for Veterans Claims (Court) has 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). As previously stated in the March 2014 remand, in this case, there has been no initial decision addressing an inferred claim for a dental condition for treatment purposes, and, therefore, this particular claim is not encompassed in the current appeal. See 38 C.F.R. § 19.25 ("The claimant and his or her representative, if any, will be informed of appellate rights provided by 38 U.S.C. chapters 71 and 72, including the right to a personal hearing and the right to representation... in each notification of a determination of entitlement or nonentitlement to Department of Veterans Affairs benefits."). Significantly, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not compensable disabilities, but may nevertheless be 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 (2016). Accordingly, as stated in the March 2014 Remand, the issue of entitlement to service connection for a dental condition for treatment purposes is hereby REFERRED for appropriate action. FINDING OF FACT The Veteran does not have a current dental disorder for VA compensation purposes. CONCLUSION OF LAW The criteria for service connection for a dental disability for VA compensation purposes have not been met. 38 U.S.C.A. §§ 1131, 1712, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.381, 4.150 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in April 2003, prior to the initial adjudication of the claim, of the information and evidence needed to substantiate and complete the claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording a VA examination. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. In this regard, the Veteran was provided with VA examinations and a VHA opinion was obtained. The opinions and examinations were rendered by medical professionals following a thorough physical examination and interview of the Veteran and review of the claims file. The examiners obtained an accurate history, and detailed the Veteran's assertions. The examiners also provided a factual foundation and reasoned bases for the conclusions that were reached. The Board finds that the examination findings and the examination reports are adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). This claim was remanded in October 2006, July 2009, March 2011, and March 2014. The RO was instructed to attempt to obtain service treatment records, afford the Veteran VA examinations, and obtain additional treatment records. A request to obtain treatment records from Marble Mountain Hospital and Tien Shu Hospital was made in September 2014. In October 2014, a response was received that no records were available. The Veteran was afforded a VA examination in May 2011 and a VA opinion was obtained in November 2014. As such, the evidence indicates that there has been substantial compliance with the Board's remand directives for this issue. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In short, VA has satisfied its duties to notify and assist. Accordingly, the Board will address the merits of the Veteran's claim. II. Entitlement to Service Connection The Veteran asserts that his dental disorder, including missing teeth, is due to being in close proximity to explosions during service, or in the alternative, is secondary to his exposure to herbicides. (CONTINUED ON NEXT PAGE) Applicable Laws Service connection may be granted for a 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. 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). 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). The Veteran has verified service within Vietnam. See DD-214; October 2001 rating decision. 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 any positive association between herbicide exposure and dental 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). Under VA regulations, compensation is available for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150. These conditions include loss of whole or part of the mandible, nonunion or malunion of the mandible, loss of whole or part of the ramus, loss of whole or part of the maxilla, nonunion or malunion of the maxilla, loss of the condyloid or coronoid process, or loss of any part of the hard palate. See 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. Compensation is also available for loss of teeth only if such is due to loss of substance of body of maxilla or mandible. See Simmington v. West, 11 Vet. App. 41 (1998). For loss of the teeth, bone loss through trauma or disease, such as osteomyelitis, must be shown for compensable purposes. The loss of the alveolar process as a result of periodontal disease is not considered disabling. See 38 C.F.R. § 4.150, Diagnostic Code 9913. In addition, to be compensable, the lost masticatory surface for any tooth cannot be restorable by suitable prosthesis. Id. Thus, in order to establish service connection for compensation purposes, it is not enough to show that the teeth were lost due to trauma. The evidence must demonstrate that the trauma resulted in loss of substance of the maxilla or mandible, which then resulted in the loss of the teeth. VA's General Counsel has held that dental treatment of teeth, even extractions, during service does not constitute dental trauma. See VAOPGCPREC 5-97, 62 Fed. Reg. 15,566 (1997). Facts In a November 1968 Report of Medical History, the Veteran indicated he had a concussion prior to service in September 1968; at the time, the examiner noted that the Veteran suffered from mild, post-concussion headaches. An initial dental examination in May 1969 indicated some missing teeth and existing restorations. Service records indicate the Veteran underwent dental treatment while in Vietnam on teeth 12 and 13 in February 1970 and teeth 7, 8, and 11 in March 1970. An October 1985 Report of Medical History noted a history of multiple concussions and complications. The Veteran filed a claim for "chipped teeth" in April 2000. In a statement received in February 2001, the Veteran indicated that he chipped his teeth on two occasions during service, and after the second, he went to the dentist where they evened them out, however, he was warned that he would lose the nerve in the front two teeth. He reported that less than a year later, the teeth abscessed and he needed a root canal on his front teeth. The Veteran asserts that the dentist asked if he had been near any explosions, as he felt that was the only thing that could explain the damage to the Veteran's teeth. In a May 2003 statement, the Veteran stated that during service, he was about to load a large amount of ordnance to go up river when a tremendous flash went off and he was slammed with a concussion that "loosened his teeth." He also reported that at the time, he was light headed, out of breath, and knocked to the ground. The Veteran was afforded a VA examination for an unrelated disorder in June 2003. The Veteran reported that in 1969 he had a trauma to the face, and later on as a consequence of this trauma, he had to have tooth root canal treatments. The Veteran's private dentist submitted a statement in January 2005. The dentist indicated that the Veteran has been a patient since 1979, and reported that his teeth were traumatized during his military service due to an accident. The dentist stated that the dental work during this earlier time required only fillings, but apparently, the damage was more severe and over the years, the Veteran's anterior teeth deteriorated to the point where he needed root canals, extractions and crowns. The dentist indicated that in the normal course of dentistry, this progression sometimes happens; however, when there is trauma, this sequence of dental events is almost certain to happen. In a March 2006 statement, the Veteran again asserted that his teeth were affected by a concussion received when an ammunition dump was blown up, and the next time he was near an explosion, his teeth were chipped and he lost feeling in the lower part of his face. The Veteran asserts that he also damaged nerves in his upper jaw and had root canals and a bridge, as a result of the concussions from being near explosions. The Veteran was afforded a VA examination in May 2011. The examiner stated that teeth 6 through 10 were currently missing. A partial upper denture was made and masticatory function was satisfactory. The examiner stated there was no evidence of the upper teeth being traumatized or lost while in service and opined that it was less likely than not that the missing anterior upper teeth were traumatized and eventually lost due to events that occurred during the Veteran's time in service. An addendum opinion was obtained in November 2014. The examiner stated that dental records showed composite restorations were placed on teeth 7, 8, and 11 in March 1970. The examiner explained that restorations of these teeth is more consistent with routine dental care than from trauma resulting from an explosion, as an explosion to or near the face would cause much more extensive and immediate damage. The examiner opined that it is not at least as likely as not that the Veteran's dental condition was due to or the result of trauma sustained from an explosion during service. In February 2017, the Board requested an expert medical opinion from the Veterans' Health Administration (VHA). See 38 C.F.R. § 20.901 (2016). A VHA opinion was received in May 2017. The expert opined that it was not likely the Veteran's current dental condition was related to any in-service dental trauma, including concussive effects from being in the vicinity of explosions. The expert explained that there is no documentation relating to trauma in the Veteran's treatment files. The Veteran's initial examination in May 1969 indicated he was missing teeth #1, #16, #17, and #32. He also needed routine dental treatment, which was completed on three maxillary anterior teeth #7, #8, and #11 in February 1970 and two posterior teeth, #12 and #13 on March 1970. The expert stated that there is no evidence that concussions from explosions causes loss of teeth unless the patient has documentation that there was direct facial trauma. The expert noted the Veteran's assertions that he was knocked to the ground and his teeth loosened and were chipped after being near several explosions during service. The expert explained that there were no dental radiographs to review to indicate the Veteran's original condition of his dentition, however, the in-service examination had a treatment plan for only routine dental treatment and there was no record of chipped teeth or treatment of chipped teeth in the military. The examiner also explained that literature from the National Academy of Sciences did not list any oral or dental conditions, such as periodontitis, among effects of exposure to herbicides such as Agent Orange or other chlorinated dioxins. Therefore, the examiner opined that it is equally unlikely that the Veteran's dental condition is related to any in-service exposure to herbicides. Finally, the examiner commented on the January 2005 letter from Dr. R. L. The examiner noted that there were no treatment records to review from this dentist; there were no records from the hospitals the Veteran stated he was treated in, and there were no entries concerning treatment at Camp Tien Shu dispensary during service. The expert stated that if there was actual trauma directly to the front teeth, there is a potential that they may need endodontics sometime in the future; however, to state unequivocally that trauma follows chipped teeth, resulting in endodontics, and subsequently to extractions, is not accurate. Analysis Upon review of the evidence of record, the Board finds that the Veteran is not entitled to service connection for a dental disorder. Service treatment records show that the Veteran had missing teeth and received dental treatment; however, there is no indication that his teeth were affected by any trauma during service, or that he was ever treated for any dental traumas during service. The Board finds the Veteran is competent to report he was near explosions. However, there is no mention of chipped teeth or any trauma to the face noted in the service treatment records. The Board notes that the absence of evidence does not automatically constitute substantive negative evidence. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); see also Buchanan, 451 F.3d at 1336-37 (holding that the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible). In order to find that silence in the record contradicts lay testimony, the Board "must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation." Fountain v. McDonald, 27 Vet. App. 258, 272 (2015) (citing Horn v. Shinseki, 25 Vet. App. 231, 239, n.7 (2012) for the proposition that "the absence of evidence cannot be substantive negative evidence without 'a proper foundation . . . to demonstrate that such silence has a tendency to prove or disprove a relevant fact.'"). That foundation may be laid by a finding that the fact at issue would ordinarily have been recorded, in which case the Board may legitimately infer from the absence of such a record that it did not occur. See id.; Buczynski, 24 Vet. App. at 224 (noting that under FED. R. EVID. 803 (7), "the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded"); Cf. AZ v. Shinseki, 731 F.3d 1303, 1315-16 (Fed. Cir. 2013) (noting that the Federal Rules of Evidence, including section 803(7), while not controlling in the adjudication of VA benefits claims, provide "useful guidance," and quoting federal case law to the effect that "[t]he absence of a record of an event which would ordinarily be recorded gives rise to a legitimate negative inference that the event did not occur" (internal citation omitted)). Thus, the Board may infer from silence in the service treatment records that a claimed disease, injury or event did not occur during active service if it finds that the service treatment records are complete "in relevant part," and that the claimed "injury, disease, or related symptoms would ordinarily have been recorded had they occurred." Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring). Such a finding constitutes "contradictory" evidence weighing against the credibility of a claimant's testimony. Id. In making this determination, the Board must consider whether it is competent to find that a claimed medical issue would ordinarily have been recorded without supporting medical evidence. Id. at 434; cf. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is not competent to substitute its own opinion for that of a medical expert). Here, the service treatment records are complete "in relevant part" and, in conjunction with subsequent treatment records and other contemporaneous evidence, contradict the Veteran's lay statements. Specifically, the service treatment records are complete insofar as they pertain to the Veteran's period of active service and include the Veteran's medical and dental file. The Veteran allegedly chipped his teeth and was in close proximity to explosions during active service, a time frame which is encompassed by the period spanned by the service treatment records in the claims file. Thus, the service treatment records appear in every way to be complete. Thus, apart from the Veteran's own unsupported assertions, the service treatment records appear to be complete. The Veteran has asserted that he was hospitalized at Marble Mountain Hospital and Tien Shu Hospital, but no records were found at these facilities, as discussed above regarding VA's duty to assist, and the Board finds that the allegation of the Veteran's teeth being damaged from trauma during service is not credible, as explained below. The service treatment records pertaining to the Veteran's active service are entirely silent for teeth damaged due to trauma. Specifically, there is no mention of chipped teeth, trauma due to close proximity to explosions, or any other type of trauma to the mouth during active service. Significantly, the Veteran's dental records include a seemingly comprehensive review of the Veteran's dental treatment during service. The Veteran has reported that he sustained trauma to his teeth in 1969. The dental records indicate the Veteran was seen for dental treatment in January 1970, February 1970, March 1970 and two occasions in May 1970. At no time was there any indication that the Veteran suffered from dental trauma. The treatment records indicate routine dental work. The dental records constitute probative evidence that the Veteran did not have dental trauma during service, as they record multiple dental treatments, yet fail to indicate any type of trauma or treatment as a result of a trauma. It is within the Board's competence to find it implausible that the Veteran would have sustained dental trauma and there would be no mention in the treatment records or dental records, yet routine dental care would have been detailed and documented appropriately. Thus, the Board is competent to find, and so finds, that such an injury would ordinarily have been recorded at some point in these complete records. In light of the above, the Board finds that there is a sufficient foundation to infer from the silence in the Veteran's apparently complete service treatment and dental records that he did not sustain any dental trauma or have dental problems due to any type of trauma during service. See Kahana, 24 Vet. App. at 440; Fountain, 27 Vet. App. at 272; Horn, 25 Vet. App. at 239. Moreover, the service treatment records and dental records are not merely silent, but reflect treatment for a number of medical/dental conditions, and yet are negative for any dental trauma, further making it implausible that the Veteran sustained dental trauma during service but it was not recorded. Of note, even if the Board concedes that the Veteran suffered a dental trauma during service (despite the issues discussed above), although the Veteran suffers from loss of teeth, there is no evidence of record that his tooth loss is due to the loss of substance of body of maxilla or mandible during service. No medical records or dental records available indicate that the Veteran suffers from loss of substance of body of maxilla or mandible. Additionally, the evidence does not support a finding that the Veteran has been diagnosed with any of the dental and oral conditions listed in 38 C.F.R. § 4.150. That is, there is no diagnosis of record for loss of whole or part of the mandible, nonunion or malunion of the mandible, loss of whole or part of the ramus, loss of whole or part of the maxilla, nonunion or malunion of the maxilla, loss of the condyloid or coronoid process, or loss of any part of the hard palate, for which service-connected compensation could be granted. See 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. The Board finds the VA examinations, VA opinions and the VHA speciliast opinion to be highly probative as they were rendered after a comprehensive review of the Veteran's dental history, service treatment records, and consideration of the Veteran's statements concerning the onset of dental symptoms. There are no probative medical opinions of record to the contrary. In so finding, the Board recognizes Dr. R.L.'s January 2005 opinion that stated the Veteran reported that his teeth had been traumatized during military service due to an accident, that the Veteran's anterior teeth had deteriorated to the point of needing root canals, extractions, and finally crowns, and that this sequence of dental events is almost certain to happen when there is any trauma. However, this opinion is contradicted by the February 2017 VHA expert. The VHA expert stated that if there is actual trauma directly to the front teeth, there is a potential need for endodontics sometime in the future, however, to state unequivocally that a sequence of trauma from chipped teeth would lead to endodontic procedures, and susequently to extractions is not accurate (emphasis added). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1131; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has a compensable dental or oral disability for which benefits are being claimed. Because the evidence does not establish that the Veteran has a current compensable dental condition during the pendency of the appeal, the Board finds that the Veteran is not entitled to service connection for a compensable dental disability under 38 C.F.R. § 4.150. Notably, the Veteran has not submitted any competent evidence showing that he suffers from any of the disabilities included under 38 C.F.R. § 4.150. The Board has considered his lay testimony and arguments. However, to whatever extent such assertions are being offered to establish that the criteria for awarding compensation for tooth loss due to trauma are met, the Board finds that such assertions provide no basis for allowance of the claim. As indicated above, this claim turns, in large part, on the question of whether the Veteran even has a dental disability for which service connection for compensation purposes may be granted - i.e., one with loss of the substance of the body of the maxilla or mandible due to injury or disease - the resolution of which requires consideration of matters within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran is not shown to have the appropriate medical training and expertise, he is not competent to render a probative (persuasive) opinion on such a medical matter. See, e.g., Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Hence, the lay assertions in this regard have no probative value. In short, as the Veteran has not been diagnosed with a disability of the teeth for which service connection may be granted, the claim for service connection for a dental condition for compensation purposes must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against service connection for a dental disorder for the purpose of obtaining VA compensation. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a dental condition due to trauma, including missing teeth numbers 6 through 10, for compensation purposes, also claimed as secondary to herbicide exposure, is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs