Citation Nr: 1754596 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 14-09 946 DATE THE ISSUES 1. Entitlement to service connection for a dental disability due to the loss of crowns, claimed as caps on upper and lower teeth, for compensation purposes. 2. Entitlement to service connection for a dental disability due to the loss of crowns, claimed as caps on upper and lower teeth, for dental treatment purposes. ORDER Service connection for a dental disability due to loss of crowns for compensation purposes is denied. Service connection for a dental disability due to the loss of crowns for dental treatment purposes is denied. FINDINGS OF FACT 1. The Veteran does not have a dental disability for which compensation can be authorized. 2. The Veteran does not meet the requirements for any of the classes of eligibility for dental treatment for a dental disability due to loss of crowns. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for a dental disability due to loss of crowns for compensation purposes have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.381, 4.150 (2017). 2. The criteria for eligibility for VA dental treatment for a dental disability due to loss of crowns have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 1712 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.381, 4.150, 17.161 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1972 to February 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied service connection for caps on upper and lower teeth. In August 2014, the Veteran testified in a Board hearing before the undersigned at the RO, and the transcript is of record. In November 2015, the Board remanded the case for further development, including obtaining relevant private dental treatment records and adjudicating the issue of service connection for a dental disability for treatment purposes. The Veteran was subsequently sent letters in November 2015 and February 2016 requesting that he submit relevant dental treatment records or sign an authorization to allow VA to obtain the treatment records on his behalf. To date, no response from the Veteran has been received. The issue of entitlement to service connection for a dental disability for treatment purposes was adjudicated and denied in a February 2016 Supplemental Statement of the Case (SSOC). The Board finds there has been substantial compliance with its remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Stegall v. West, 11 Vet. App. 268 (1998). Service connection for a dental disability The Veteran contends that he had crowns put on the right side of his mouth on upper and lower teeth in service to treat excessive cavities. He states that the crowns were not put on correctly and caused further damage to his teeth, including nerve damage that required a root canal. See the November 2012 claim for compensation, March 2014 VA Form 9, August 2014 Board hearing transcript. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Under current VA regulations, compensation is only available for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150, including conditions of the mandible, maxilla, ramus, condyloid process, coronoid process, hard palate, and loss of teeth due to loss of substance of the body of the maxilla or mandible. See 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. Otherwise, a veteran may be entitled to service connection for dental conditions including treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease, for the sole purposes of receiving VA outpatient dental services and treatment, if certain criteria are met. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 17.161. Rating activity should consider each defective or missing tooth and each disease of the teeth and periodontal tissues separately to determine whether the condition was incurred or aggravated in line of duty during active service and, when applicable, to determine whether the condition is due to combat or other in-service trauma, or whether the veteran was interned as a prisoner of war. 38 C.F.R. § 3.381(b). In this case, service treatment records (STRs) indicate that the Veteran had fillings in various teeth, including teeth numbers 3, 29, 30, and 31; however, treatment records are silent for mention of any injury or trauma to the teeth. In addition, in an October 1975 separation from service examination, the Veteran's mouth and throat were found to be clinically normal and there is no notation of dental trauma or any dental problems. The sole post-service dental record contained in the claims file was submitted in March 2013 and contains an undated x-ray of the Veteran's teeth, showing several fillings and a couple of crowns on the lower and upper teeth. It also appears in the x-ray that the Veteran is missing tooth number 31. In the August 2014 Board hearing, the Veteran testified that he had three or four caps or crowns put on his upper and lower teeth on the right side of his mouth in service. He asserted that the crowns were necessary due to "a lot of cavities," and that he did not experience a dental trauma in service. The Veteran stated that the crowns were not put on correctly because in the 1980s, a crown came off a bottom tooth and an upper tooth. He stated that he has some crowns on the left side of his mouth that are still there, so he thought that meant that the ones put on the right side of his mouth in service were done incorrectly. The Veteran also indicated that one lower tooth crown is "severed off at the gum" and one crown on an upper tooth is cracked. The Veteran asserted that he could not chew food on the right side of his mouth and had a root canal in one tooth in the early 1980s due to nerve damage in the tooth. The Veteran noted in the Board hearing that he was treated by a private dentist; however, as discussed above, he was sent letters in November 2015 and February 2016 requesting that he submit treatment records from his dentist or sign an authorization to allow VA to obtain the treatment records on his behalf. To date, no response from the Veteran has been received. In sum, on this record, although it is clear the Veteran has had in-service and post-service dental treatment including fillings and crowns, his dental condition does not constitute an injury for which service connection for compensation may be granted. The Veteran has not been shown to have any conditions of the mandible, maxilla, ramus, condyloid process, coronoid process, hard palate, or loss of teeth due to loss of substance of the body of the maxilla or mandible. See 38 C.F.R. §§ 3.381(b), 4.150, Diagnostic Codes 9900-9916. See also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability . . . in the absence of a proof of present disability there can be no claim."). In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for compensation for a dental disability due to loss of crowns, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). The Board will next determine whether the Veteran has met the requirements for entitlement to service connection for a dental disability for purposes of receiving VA outpatient treatment and services. See 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 17.161. The classes of eligibility for dental treatment are set forth in 38 C.F.R. § 17.161. See 38 U.S.C. § 1712. Only Class I and Class II are potentially applicable in this case, which are analyzed below. With reference to Class I, those having a service-connected compensable dental disability or condition may be authorized dental treatment as necessary to maintain oral health and masticatory function. Here, however, the Veteran does not have a dental disability subject to compensable service connection, as set forth under 38 C.F.R. § 4.150. As such, the Veteran does not satisfy Class I criteria. 38 C.F.R. § 17.161(a). With reference to the Class II criteria, a veteran who has a service-connected noncompensable dental condition or disability shown to have been in existence at time of discharge or release from active service, may, under certain specified conditions, utilize outpatient dental services and treatment. Restrictions include one-time treatment and timely application after service, usually within one year after discharge or release from active service. Additionally, the certificate of discharge or release must not certify that the veteran was provided a complete dental examination within 14 months after discharge or release unless delayed through no fault of the veteran. In the present case, the Veteran has not been previously awarded service connection for purposes of receiving VA outpatient dental treatment. Thus, he does not meet the Class II criteria. 38 C.F.R. § 17.161(b); see 38 U.S.C.A. § 1712(a)(1)(B). 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 the service-connected noncompensable condition or disability. 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 examinations or outpatient dental treatment. 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), 62 Fed. Reg. 15,566 (1997); Nielson v. Shinseki, 607 F.3d 802 (2010) (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). Here, there is simply no evidence to establish that the Veteran's current dental condition is related to an in-service trauma. The Veteran himself testified in the Board hearing that his in-service dental work was due to cavities, and he expressly denied suffering any dental trauma or injury in service. The Board does not doubt that the Veteran is sincere in his belief that his claimed dental condition is related to service, including the crowns being put on his teeth incorrectly in service. However, to be authorized for Class II(a) dental treatment, an in-service combat wound or trauma is necessary, and as discussed above, 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. As such, the Veteran does not meet the Class II (a) criteria for VA dental treatment for a noncompensable dental condition that resulted from combat wounds or other service trauma. 38 C.F.R. § 17.161(c); see 38 U.S.C. § 1712(a)(1)(B). ______________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD N. Nelson, Associate Counsel Copy mailed to: Texas Veterans Commission Department of Veterans Affairs