Citation Nr: 1737998 Decision Date: 09/08/17 Archive Date: 09/19/17 DOCKET NO. 13-13 166 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for headaches, to include as secondary to dental issues. 2. Entitlement to service connection for a disorder manifested by jaw soreness, to include osteomyelitis, to include as secondary to dental issues. 3. Entitlement to service connection for a sinus disorder, to include as secondary to a dental disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S.M. Kreitlow INTRODUCTION The Veteran had honorable active military service from January 1996 to June 1998 and November 2004 to November 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran appeared and testified at a Board video-conference hearing held at the RO before the undersigned Veterans Law Judge in January 2014. The transcript of this hearing is associated with the claims file. In March 2015 and January 2016, the Board remanded the claims listed on the title page for additional development. Also, in the January 2016 remand, the Board referred to the RO a claim for entitlement to compensation under 38 U.S.C.A. § 1151 for osteomyelitis, claimed as due to VA medical treatment in 2007, and entitlement to service connection for staph and uvula infections. FINDINGS OF FACT 1. By rating decision issued on August 7, 2017, after certification of the Veteran's appeal to the Board but prior to the promulgation of a decision, the RO granted the benefits the Veteran seeks on appeal with respect to the headache and sinusitis claims; therefore, as to these matters, no justiciable issues remain for the Board to decide. 2. Osteomyelitis, residual of oral implant surgery, to include staph and uvula infections, is at least as likely as not related to service. CONCLUSIONS OF LAW 1. The Board lacks jurisdiction over the issues of entitlement to service connection for a headache disability and a sinus disorder because those issues have been granted and rendered moot. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 19.4, 20.101, 20.200, 20.202, 20.204 (2016). 2. Affording the Veteran the benefit of the doubt, the criteria for service connection for osteomyelitis, residual of oral implant surgery, to include staph and uvula infections, are met. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.310 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Headache and sinus disorder claims Generally the Board's jurisdiction is predicated upon an appeal having been filed on an issue or issues in controversy. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 19.7, 20.101. In the present case, the Veteran's appeal was previously before the Board in May 2015 and January 2016 at which time the Board remanded his claims for service connection for additional development. In June 2017, after issuance of a Supplemental Statement of the Case in May, the Veteran's claims were recertified to the Board for final adjudication. However, in May 2017, the Veteran submitted a new application for service connection and continued to submit additional evidence related to both this new application and his claims on appeal throughout May, June and July. Consequently, in a rating decision issued on August 7, 2017, after recertification of the Veteran's appeal to the Board but before a decision could be rendered, the RO granted service connection for chronic sinusitis and migraine headaches. Hence, the Board finds that the RO has granted in full the benefits that the Veteran seeks in the present appeal with respect to his headache and sinus disorder claims and there remain no allegations of errors of fact or law (i.e. no justiciable issues) for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of these matters. Dismissal of these issues is, therefore, warranted. See 38 C.F.R. § 20.101 (d) (granting the Board the authority to dismiss any matter over which it does not have jurisdiction). Osteomyelitis, residual of oral implant surgery, to include staph and uvula infections In the body of the August 5, 2017, rating decision, the RO granted service connection for osteomyelitis, residual of oral implant surgery, to include staph and uvula infections. However, elsewhere in the decision, the RO granted compensation under 38 U.S.C.A. § 1151 for osteomyelitis, residual of oral implant surgery, to include staph and uvula infections. Given this variance and for purposes of clarity, the Board herein grants service connection for osteomyelitis. The Board notes that service connection is the greater benefit. [The Board notes that the law precludes receipt of compensation under both § 1151 and the provisions pertaining to service connection for the same disability. 38 C.F.R. § 4.14] Medical opinions from several private physician, including Drs. Bash and Das provide a nexus between the Veteran's current disorder and service. In June 2017, Dr. C.N. Bash found his recurrent dental infection was due to his time in service, namely "a chronic facial infection stemming from his tooth extraction . . . in 2005 at Balad Air Base" which in turn resulted in multiple disabilities manifested by pain, repeated infections, and jaw problems. Dr. Bash provided medical articles to support his opinion. In August 2016, Dr. S. Das provided a medical opinion which concluded that "[i]t is at least as likely as not that [the Veteran's] VA disability claim of osteomyelitis is related to his active duty service in Iraq during the year of 2005." Dr. Das reported he had carefully reviewed the Veteran's medical and dental records in service and after service and clearly explained his opinion. A VA medical opinion obtained in May 2017 opined that the Veteran's jaw soreness was less likely as not related to service, specifically the treatment of tooth #3 while on active duty in 2004 and 2005. The VA examiner found the location of tooth #3 was anatomically separate from the vast majority of the locations the Veteran experienced pain. That clinician also concluded that osteomyelitis was unrelated to in-service treatment of tooth #3. As the evidence is in relative equipoise, entitlement to service connection for osteomyelitis, residual of oral implant surgery, to include staph and uvula infections, is warranted. ORDER The appeal as to the claims for service connection for a headache disorder and a sinus disorder is dismissed. Service connection for osteomyelitis, residual of oral implant surgery, to include staph and uvula infections, is granted. M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs