Citation Nr: 1800094 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 14-16 704 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a dental injury. 2. Entitlement to service connection for a dental disability for dental treatment purposes. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD I. Umo, Associate Counsel INTRODUCTION The Veteran served active duty in the U.S. Army from June 1966 to May 1969, and from July 1970 to September 1987. This matter comes before the Board of Veterans' Appeals (Board) from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in the Winston-Salem, North Carolina. The Veteran filed his notice of disagreement in May 2013. The Veteran timely filed his substantive appeal. The Board notes that a claim for service connection for a dental disorder is also a claim for VA outpatient dental treatment. Mays v. Brown, 5 Vet. App. 302 (1993). Thus, in the current case, adjudication of the Veteran's claim for service connection must also include consideration of service connection for the purpose of establishing eligibility for outpatient dental treatment as provided in 38 C.F.R. § 17.161. Douglas v. Derwinski, 2 Vet. App. 435 (1992) (Board is required to consider a Veteran's claim under all applicable provisions of law and regulation whether or not the claimant specifically raises the applicable provision); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Therefore, the issue of entitlement to service connection for a dental disability for dental treatment purposes has been added. On September 12, 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ), via videoconferencing. A transcript of that hearing is of record. FINDINGS OF FACTS 1. The preponderance of the competent evidence of record is against a finding the Veteran currently has a dental disorder for which VA compensation may be paid. 2. A compensable dental disability was incurred during service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a dental injury were not met. 38 U.S.C. § 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). 2. The criteria for service connection for a dental disability for dental treatment purposes were met. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.381, 17.161(h) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017); 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 (2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2017), 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. The Board notes that under 38 U.S.C. § 5103A(d), VA is duty bound to provide a Veteran with a VA examination when (1) there is evidence of a current disability - OR - persistent or recurrent symptoms of disability; AND (2) the evidence indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service; BUT (3) there is not sufficient medical evidence for the Secretary to make a decision on the claim. Here, VA is not required to provide the Veteran with VA examination because there is no evidence of record that the Veteran has a current disability. Likewise, the Veteran has not endorsed any persistent or recurrent symptoms of a dental disability. In fact, in a private medical record in June 2012, the dentist indicated that the Veteran's teeth were clinically sound structurally and without significant periodontal involvement. Likewise, in the September 12, 2017 hearing transcript, the Veteran testified that his teeth were sound and no dentist had ever told him that he had any periodontal or jaw issue associated with his tooth injury. Therefore, as there is no evidence a current disability, a VA examination is not required. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the Board will address the merits of the claims. Service Connection Claims Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247 (1999). Dental conditions for which service-connected compensation benefits are available are set forth under 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. 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. Compensation is also available for loss of teeth only if such is due to loss of substance of body of maxilla or mandible. 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. Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease will be considered service connected solely for the purpose of establishing eligibility for outpatient dental treatment and cannot be considered for compensation purposes. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150. To establish entitlement to service connection for loss of a tooth, the Veteran must have sustained a combat wound or other in-service trauma. 38 U.S.C. § 1712; 38 C.F.R. § 3.381(b). The significance of finding that a dental condition is due to in-service trauma is that a veteran will be eligible for VA outpatient dental treatment, without being subject to the usual restrictions of a timely application and one-time treatment. 38 C.F.R. § 17.161 (c). In his May 2012 claim, the Veteran asserted that he was applying for compensation for dental work. He reported that he injured his tooth during a field exercise when his rifle hit him in the mouth. The Veteran also claimed that he was attacked during his time in Germany, which caused further trauma to the tooth.. The Veteran reported that his tooth was pulled and a partial plate was used. Subsequently, the partial plate was replaced with a bridge. The Veteran added that his bridge needs replacement. The Veteran's STRs reflect the tooth trauma as well as routine dental examinations. The STRs show that the Veteran was fitted with a flipper in September 1961. There is a clinical update in the STRs that reflect the Veteran may have had juvenile periodontitis based on moderate periodontitis with severe manifestations in the lower part of the Veteran's mouth. However, current treatment does not reflect any dental disability. As discussed above, in a private medical record in June 2012, the dentist indicated that the Veteran's teeth were clinically sound structurally and without significant periodontal involvement. Likewise, the Veteran testified that his tooth is fixed, and he does not recall any dentist telling him that he had a jaw or pallet injury. In a private medical opinion, a dentist opined that the Veteran's reported trauma to his anterior teeth is related directly to his in-service injury. The medical opinion is competent but is of little probative value as the dentist did not diagnose the Veteran with any dental disability. The Board notes that compensation may only be paid for chronic residuals of trauma or disease of the jaw or hard palate, not for disabilities affecting only the teeth and gums. There is also no suggestion of any other compensable condition as specified by 38 C.F.R. § 4.150. Accordingly, the Board finds that the preponderance of the evidence is against granting entitlement to service connection for dental disability for compensation purposes. Consequently, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Concerning whether the Veteran is eligible for VA outpatient dental treatment, the Board finds the Veteran is entitled. As discussed above, the STRs reflect that the Veteran suffered tooth trauma that caused his tooth to be pulled, a flipper to be inserted, then replaced with a bridge. As noted above, compensation is available for loss of teeth only if such is due to loss of substance of body or maxilla or mandible due to trauma or disease. The evidence of record supports that the Veteran lost his tooth due to trauma during service. The Veteran testified that the trauma was caused by two separate events, one where he was field training and the butt of his rifle hit his tooth, and the other when he was attacked during his time in Germany. The undersigned VLJ found the Veteran's testimony to be competent and credible, and therefore, highly probative on whether an in-service dental injury occurred. Moreover, the Veteran's dentist opined that the Veteran's reported trauma to his anterior teeth is related directly to his in-service injury. The evidence provided is competent and credible, and in this case, highly probative on whether the Veteran is entitled to dental treatment. Therefore, as the preponderance of the evidence is in favor of the Veteran's claim for a dental disability for treatment, the claim is granted. As the claim is granted, the benefit of the doubt rule is inapplicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a dental injury is denied. Entitlement to service connection for a dental disability for dental treatment purposes is granted. ____________________________________________ G. A. Wasik Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs