Citation Nr: 1743902	
Decision Date: 09/29/17    Archive Date: 10/10/17

DOCKET NO.  14-37 927	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to service connection for a dental disability for compensation purposes for missing upper anterior teeth (7-10).


REPRESENTATION

Veteran represented by:	North Carolina Division of Veterans Affairs


ATTORNEY FOR THE BOARD

I. Umo, Associate Counsel






INTRODUCTION

The Veteran served on active duty in the U.S. Marine Corps from June 1960 to June 1964.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.  The RO's March 2012 rating decision denied the Veteran's November 2011 claim for service connection for missing upper anterior teeth.  The Veteran filed a notice of disagreement in August 2012, to contest the RO's denial.  The statement of the case and the Veteran's substantive appeal was filed in October 2014.

This case was most recently before the Board in July 2017, where the issue on appeal was remanded to allow the Veteran or his representative to submit a VA Form 646 ("Statement of Accredited Representative in Appealed Case") or similar statement regarding the appeal prior to the certification of the appeal to the Board.  The Veteran's representative submitted a VA Form 646 in July 2017; therefore, the Board finds there has been substantial compliance with the July 2017 remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998); see also D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required).

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).


FINDING OF FACT

The Veteran does not have a qualifying dental disability, claimed as missing upper anterior teeth (7-10), for compensation purposes, for which service connection can be granted.



CONCLUSION OF LAW

The criteria for service connection for a dental disability, claimed as missing upper anterior teeth (7-10), for compensation purposes, are not met.  38 U.S.C. §§ 1101, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.381, 4.150, 17.161 (2016).  


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  VA's Duty to Notify & Assist

VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A and 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).

The duty to notify has been met.  See the July 2011 VCAA letter.  Neither the Veteran, nor his representative, has alleged prejudice with regard to notice.  The Federal Court of Appeals has held that "absent extraordinary circumstances ... it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran ...."  Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  In light of the foregoing, nothing more is required.

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2016), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  

The record reflects that all available records pertinent to the claim have been obtained.  The Veteran has not identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence.  

Accordingly, the Board will address the merits of the claims.

Service Connection

Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service.  38 U.S.C. § 1101; 38 C.F.R. § 3.303.  Service connection may be granted for a disease initially 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).

In making all determinations, the Board must fully consider all lay assertions of record.  A layperson is competent to report on the onset and continuity of observable symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if: (1) the 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.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  The Board's duty is to assess the credibility and weight of the evidence.  See Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).

When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

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. § 1712; 38 C.F.R. §§ 3.381, 4.150, 17.161.  Under         38 C.F.R. § 3.381, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal diseases are to be considered service-connected only for the purpose of establishing eligibility for outpatient dental treatment as provided in 38 C.F.R. § 17.161.

Dental disabilities that may be compensable are set forth in 38 C.F.R. § 4.150.  They include chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss of the mandible, nonunion or malunion of the mandible, limited temporomandibular motion, loss of the ramus, loss of the condyloid or coronoid processes, loss of the hard palate, loss of teeth due to the loss of substance of the body of the maxilla or mandible and where the lost masticatory surface cannot be restored by suitable prosthesis, when the bone loss is a result of trauma or disease but not the result of periodontal disease.  38 C.F.R. § 4.150, DCs 9900-9916 (2016).

Here, the Veteran claims service connection for compensation purposes for a dental disability, described in his November 2011 claim as the loss of his upper anterior teeth 7-10.  The Veteran reported that he was a boxer while in-service, and the punches he received resulted in the loosening of his front upper teeth.  He indicated that an infection set in around the roots of the upper anterior teeth, which required root canal surgery by the in-service dentist.  Ultimately, his teeth were removed.  In a private medical record, Dr. W. noted that the Veteran's teeth were removed during service and at that time, the only choice available was removable prosthesis.  The private doctor reported that implants could be used as a more permanent solution to the Veteran's dental disability.  

Review of the evidence of record does not support a finding of any trauma or disease that caused loss of the substance of the body of the maxilla or mandible, resulting in any tooth loss.  38 C.F.R. § 4.150, DC 9913, Note.  The Board acknowledges that the Veteran incurred dental trauma and treatment.  However, there is no evidence that such trauma caused loss of the substance of the body of the maxilla or mandible, resulting in any tooth loss such that compensation is warranted.  Id.  Thus, there is no evidence of record that the Veteran has a qualifying current dental disability, which is due to loss of substance of body of maxilla or mandible through trauma or disease such as osteomyelitis.  Rather, the evidence of record reflects that the Veteran incurred in-service dental trauma which was treated with a root canal.  

The Veteran has not presented any competent evidence that he has a dental disability for which service connection for compensation purposes may be granted.  The Veteran is competent to report his in-service dental trauma due to boxing, and there is no evidence that he is not credible in this regard.  However, to the extent that the Veteran purports to offer evidence that he has a qualifying dental disability, the Board finds that such statements are not competent, as the diagnosis of these disabilities is a complex medical question.  His lay statements as to whether he indeed has a qualifying dental disability are not competent and this lack probative value.  

Based on the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim of service connection for a dental disability, claimed as upper anterior tooth loss, for compensation purposes.  See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  As such, the benefit-of-the-doubt doctrine is inapplicable and the claimed is denied.  38 C.F.R. § 4.3.












ORDER

Entitlement to service connection for a dental disability for compensation purposes for missing upper anterior teeth (7-10) is denied.




____________________________________________
G. A. Wasik
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs