Citation Nr: 1751884 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 11-29 307 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Whether there is new and material evidence to reopen a claim of service connection for tooth loss. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Cooklin, Associate Counsel INTRODUCTION The Veteran served in the United States Marines from October 1971 to October 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal from a October 2010 rating decision issued by the Department of Veterans Affairs Regional Office (RO) in Houston, Texas. The question of whether new and material evidence has been received to reopen such a claim must be addressed in the first instance by the Board, because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. Regardless of the RO's decision to reopen, the Board must make an independent determination on that question. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Veteran testified before the undersigned by video hearing in July 2017. FINDINGS OF FACT 1. In an August 2008 rating decision, the Veteran's claim for service connection for tooth loss was denied. Although notified of the denial by a notification letter in September 2008, the Veteran did not initiate an appeal, nor was new evidence received during the one-year period following notification of the denial. 2. Evidence added to the record since the final August 2008 denial is cumulative or redundant of the evidence of record at the time of the prior decision and does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for tooth loss. CONCLUSION OF LAW New and material evidence has not been received to reopen the claim of entitlement to service connection for tooth loss. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA may reopen and review a claim that has been previously denied if new and material evidence is submitted. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156 (a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). "New" evidence is evidence not previously submitted to agency decision makers and "material" evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282 (1996). Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Background & Analysis The record reveals the Veteran filed his claim in April 2008, where he indicated "tooth loss, gum disease due to dental work." See Veteran's Application for Compensation. It was disallowed in an August 2008 rating decision. His attempt to refile his claim was denied in an October 2010 rating decision, and the Veteran filed a notice of disagreement in September 2011. There, he wrote his dental condition was "clearly noted" in his STR. No other pertinent evidence was added to the claims until the Veteran's testimony before the Board in July 2017. Before the Board, the Veteran's testimony is that between the years 1971 and 1975, he had dental work done while in service to repair cavities. He was told that he had "some decays." "However, the small decays were drilled to an extent where instead of being small, they drilled big." The Veteran reported that he was in pain later, and that after his discharge, he went to a private dentist in 1976 due to some of the fillings coming out and had root canals performed. Two or three years ago, the Veteran reports that he had to have five or six of his teeth pulled. One doctor quoted the Veteran $16,000 to replace the missing teeth with implants. As the Veteran noted in his Notice of Disagreement, his STRs do reflect dental work performed in service. His dental records reveal approximately 11 teeth that were marked as having cavities. His dental charts show diagrams of the teeth with the dentist's rendition on size and location of the cavities. Analysis The Board finds the August 2008 rating decision was not properly appealed, nor was interceding evidence received within one year. Therefore, the decision is final. Generally, a claim that has been denied in an unappealed decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104 (b), 7105 (c). The exception to the rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented for a disallowed claim, the Secretary will reopen the claim and review the former disposition of the claim. The Veteran's testimony before the Board in July 2017 satisfies the first of two elements needed to reopen a claim, because his testimony added new evidence that was not previously submitted to VA decision makers. For the first time, the Veteran asserted that his military dentist performed incorrect work by removing more tooth material than necessary to repair the Veteran's cavities, ultimately leading to the teeth being extracted approximately 40 years later. With regards to the second element to reopen the claim, however, the Board finds the evidence is not material because it does not relate to any fact necessary to establish the claim. Service connection for compensation purposes can only be established for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150 (2017), such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla. Compensation is available for loss of teeth only if due to loss of substance of the body of the maxilla or mandible. See Simmington v. West, 11 Vet. App. 41 (1998). For loss of teeth, bone loss through trauma or disease such as to osteomyelitis must be shown. The loss of the alveolar process as a result of periodontal disease is not considered disabling. See Note to Diagnostic Code 9913, 38 C.F.R. § 4.150 (2017). The Veteran's testimony does not add any new evidence that his loss of teeth is compensable by statute, nor do his STRs support the claim. As such, the Board must deny the claim. VA regulations direct that treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, periodontal disease (pyorrhea) and Vincent's stomatitis are not disabling conditions. They may be considered service-connected solely for the purposes of determining entitlement to dental examinations or outpatient dental treatment under the provisions of 38 CR 3.381. The Board is sympathetic to the Veteran's belief that he feels he was told he had small dental cavities and the resulting repairs were far more substantial than expected. However, the Board is required to apply the law. In the case of dental claims, the statute delineates only certain situations in which dental claims are compensable, which are not found here. In addition, the term "service trauma" does not include the intended effects of therapy or restorative dental care and treatment provided during a Veteran's active service. See 38 C.F.R. § 3.306 (b)(1); VAOGCPREC 5-97. In addition, to the extent that the Veteran alleges that he received improper treatment during service, this is a matter for the Department of Defense, not VA. In sum, the preponderance of the evidence is against the Veteran's claim for service connection. Consequently, the benefit of the doubt rule is inapplicable. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER New and material evidence not having been received, the application to reopen the claim of entitlement to service connection for tooth loss is denied. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs