Citation Nr: 1800134 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 16-37 066 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for a dental condition for compensation purposes. 2. Entitlement to service connection for a dental condition for treatment purposes. 3. Entitlement to service connection for a traumatic brain injury (TBI). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1952 to November 1956. This matter is before the Board of Veterans' Appeals (Board) on appeal of a May 2015 rating decision of the Boston, Massachusetts, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at a hearing before the Board in July 2017. A transcript is of record. A claim of service connection for a dental condition is also a claim for VA outpatient dental treatment under 38 C.F.R. § 3.381 (2017). See Mays v. Brown, 5 Vet. App. 302 (1993). In dental claims, the RO adjudicates the service connection claim for compensation purposes and the VA Medical Center adjudicates the claim for outpatient treatment. A January 2016 VA record indicates that the Dental Service for the Boston VA Healthcare System found that the Veteran had "no eligibility for dental treatment." It does not appear that the Veteran was provided a decision as to his claim for dental treatment, or a means to appeal this determination. Moreover, the June 2016 Statement of the Case does not discuss his implied claim for dental treatment. Because this matter stems from an adverse determination by the RO, the appeal is limited to the issue of service connection for a dental condition for the purpose of compensation. The claim of entitlement to service connection for a dental condition for the purpose of obtaining VA outpatient dental treatment is REFERRED to the agency of original jurisdiction (AOJ) for appropriate action See 38 C.F.R. § 19.9. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2) (2012). The issue of entitlement to service connection for a TBI is addressed in the REMAND portion of the decision below is REMANDED to the AOJ. FINDINGS OF FACT The evidence of record indicates that the Veteran suffers from a dental condition that is not compensable. CONCLUSION OF LAW The criteria for an award of entitlement to service connection for a dental condition for compensation purposes have not been met 38 U.S.C. §§ 1110, 1712; 38 C.F.R. §§ 3.381, 4.150. REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The VCAA, codified in part at 38 U.S.C. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a veteran in developing information and evidence necessary to substantiate their claim. Under 38 U.S.C. § 5103(a), VA must notify a veteran of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence a veteran is expected to provide. The information required to substantiate the Veteran's claim of entitlement to service connection was provided to the Veteran as part of the Fully Developed Claim program. As to the duty to assist, VA has made reasonable efforts to identify and obtain relevant records in support of the Veteran's claim. See 38 U.S.C. § 5103A(a), (b) and (c). The RO has obtained the Veteran's service treatment records. It does not appear that the Veteran receives treatment from VA, and the Veteran has not identified relevant private treatment records. The Board acknowledges that the Veteran was not afforded a VA examination with regard to his dental claim, and that no VA medical opinion has otherwise been obtained. As discussed below, the evidence fails to demonstrate that that the Veteran suffers from a dental condition that is eligible, by law, of supporting a claim for service connection for compensation purposes. Therefore, a VA examination and medical opinion are not necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing when VA's duty to provide an examination or obtain a medical opinion is triggered). The Board concludes that no further assistance to the Veteran in developing the facts pertinent to this claim is required. II. Legal Criteria Generally, direct service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish service connection, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of a disability or symptoms of disability subject to lay observation. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Lay evidence can be competent and sufficient to establish a diagnosis or cause when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Disability compensation is only available for certain types of dental and oral conditions, including 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, and 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. See 38 C.F.R. § 4.150; see Simington v. West, 11 Vet. App. 41, 44 (1998). Dental conditions such as treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease may be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment but will not be considered for compensation. See 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150. III. Facts and Analysis The Veteran seeks entitlement to service connection for a dental condition. He attributes this dental condition to in-service trauma. The Veteran began active duty in November 1952. A November 1952 Record of Dental Examination contains an "X" mark over teeth #1, #2, #15, #16, #17, #18, #30 and #32. Another mark, a set of two lines that appears to indicate that a tooth was slated for extraction at some future date, also appears over teeth #7, #12, #14, #23, #24, and #31. It appears that tooth #3 suffered from carries. A December 1952 service medical history record notes the extraction of 11 teeth (#1, #2, #7, #12, #15, #16, #23, #24, #29, #31, and #32) due to "[e]xtensive caries in all affected teeth." It appears that the Veteran was provided dental prosthetics to replace missing upper and lower teeth in February 1953. The Veteran states that he lost two of his teeth sometime in or about January or February 1953, while aboard the USS Antietam (CV-36), when a "large can of oil [noted as five gallons]," hit him in the head after "the ship started to roll." The Veteran adds that he was "held till the next morning and [released] back to [d]uty." [The record indicates that the Veteran was not transferred to the USS Antietam (CV-36) until April 1953.] A November 1956 dental examination upon discharge indicates that the Veteran lost teeth #3, #14, #17, and #30, following the December 1952 extraction of 11 teeth. The report indicates that all 15 missing teeth were replaced by dentures. [The Veteran's November 1956 Report of Medical Examination does not note tooth #29 as missing or replaced. The contemporaneous dental examination discussed above contains an accurate depiction of the Veteran's teeth at exit, including the loss of tooth #29 and its apparent replacement with a denture.] Despite the tooth loss, the examiner rated the Veteran's mouth and throat as normal. It appears that the Veteran's 15 missing teeth were replaced with dentures prior to his exit from service, and the evidence of record does not indicate that the Veteran suffered from loss of teeth due to the loss of substance of the body of the maxilla or mandible. Replaceable missing teeth will be considered service connected solely for the purpose of establishing eligibility for outpatient dental treatment and not for compensation purposes. See 38 C.F.R. §§ 3.381, 4.150. Because the evidence of record indicates that the Veteran seeks service connection for replaceable missing teeth, which may only be considered service-connected to establish eligibility for outpatient dental treatment and not for compensation purposes, the claim for service connection for a dental condition for compensation purposes must be denied. ORDER Entitlement to service connection for a dental condition for purposes of compensation is denied. REMAND An August 2017 Disability Benefits Questionnaire authored by the Veteran's private physician indicates that the Veteran suffers from symptoms that may be attributable to a TBI. Remand is necessary to obtain an appropriate medical opinion that addresses whether the Veteran suffers from the residuals of a TBI incurred in or related to his service. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005); McLendon, 20 Vet. App. at 79. The RO should also obtain relevant deck logs, command histories, and/or other relevant documents, that may corroborate the incident that reportedly caused the Veteran's TBI during his service aboard the USS Antietam (CV-36). See 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain from the appropriate source, copies of deck logs, command histories, and/or other relevant documents from the USS Antietam (CV-36), from April 1953 to March 1955, necessary to corroborate the incident which the Veteran states caused his reported TBI. Make as many requests as are necessary to obtain the relevant records and end such efforts only if the records sought do not exist or further efforts to obtain those records would be futile. Cases in which VA may conclude that no further efforts are required include those in which the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them. Associate any records or negative responses with the claims file. 2. Schedule the Veteran for a VA examination, with a qualified examiner, to assess whether the Veteran suffers from residuals of a TBI related to his service. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner is requested to provide the following opinion: Is it at least as likely as not (a 50 percent probability or greater) that any of the Veteran's reported symptoms are residuals of an in-service TBI or any other head injury or event incurred in service? The term "at least as likely as not" does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 3. Readjudicate the Veteran's claim. If the benefit sought remains denied, furnish to the Veteran and his representative a Supplemental Statement of the Case. The Veteran has the right to submit additional evidence and argument on remanded matters. Kutscherousky v. West, 12 Vet. App. 369 (1999). Remanded matters must be handled expeditiously. 38 U.S.C. §§ 5109B, 7112. ______________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs