Citation Nr: 1800837	
Decision Date: 01/08/18    Archive Date: 01/19/18

DOCKET NO.  09 11-283	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for a dental disability (claimed as gum disease) for compensation purposes.  

2.  Entitlement to an evaluation in excess of 10 percent for service-connected residuals of a low back strain (hereinafter, low back disability).  

2.  Entitlement to a compensable evaluation for service-connected bilateral hearing loss with nonsupporative otits media.  

3.  Entitlement to service connection for a jaw disability, to include temporamadibular syndrome (TMJ) (claimed as lock jaw).  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Scott W. Dale, Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Marine Corps from June 1969 to June 1973 and in the U.S. Army from October 1974 to October 1990.  He also had more than a year of service of an unspecified nature in the U.S. Army Reserves.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated September 2008, January 2010, amd March 2010 from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  

Although the Veteran previously requested to present oral testimony to a member of the Board at a hearing, in a September 2012 statement, he withdrew these earlier requests.  As such, the Board may proceed with appellate consideration of these issues.  See 38 C.F.R. § 20.704 (d) (2017).  

Appeals not under the Board's jurisdiction

The Veteran has perfected an appeal to the Board concerning a claim to establish service connection for obstructive sleep apnea.  However, because this appeal is awaiting fulfillment of a hearing request filed by the Veteran, that appeal remains under the jurisdiction of the Veterans Benefits Administration (VBA), and is not ripe for appellate consideration by the Board at this time.  The Board notes that this hearing was requested in connection to the sleep apnea issue only, and it was made after the Veteran's withdrew his prior requests for hearings in conncection with the appeals currently before the Board.  

In April 2009, the Veteran perfected an appeal to the Board for the issue of entitlement to service connection for a lip scar.  However, before the appeal was certified to the Board, the RO granted this issue in an August 2009 rating decision; a noncompensable (zero percent) initial evaluation was assigned, effective from May 5, 2008.  The Veteran has not expressed disagreement with this determination or the assigned effective date, and thus, that issue is no longer in appellate status.  See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997).  

In August 2010, the Veteran perfected, and VBA later certified, an appeal to the Board for Special Monthly Compensation (SMC) based on loss of use of a creative organ.  However, in an October 2015 rating decision, the RO, among other actions, granted this appeal to the fullest extent.  The Veteran has not expressed disagreement with this determination or the assigned effective date, and thus, that issue is no longer in appellate status.  See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997).

Characterization of an issue on appeal and referred issue

In November 1990, the Veteran filed 18 claims seeking disability benefits from VA, including a claim to establish service connection for "gum disease" for compensation purposes.  While the RO took adjudicative action on many of these claims in a February 1991 rating decision, the issue of entitlement to service connection for for "gum disease" for compensation purposes was not addressed in the body of the rating decision and is not mentioned in the Code Sheet section as a disability that was either allowed or denied.  It appears that this issue was not adjudicated at that time.  

In January 2009, the Veteran filed a claim to establish service connection for a "dental condition / lock jaw."  Throughout the pendency of this claim and downstream appeal, the RO has kept this issue combined; however, the adjudications of the issue have shown that the issue is, in fact, two separate issues which have been adjudicated under two different controlling laws.  Specifically, in the January 2010 rating decision, the RO denied service conection for a "dental disability / lock jaw" because there was no evidence that the claimed disability was present in service or is otherwise related to service, reflecting that direct service connection under 38 C.F.R. § 3.303 was considered.  However, in the August 2010 Statement of the Case (SOC), the RO denied service connection for lock jaw under the criteria for direct service connection, 38 C.F.R. § 3.303, and also stated that "conditions which you sought dental treatment during service which affected only the teeth or gums are not are not considered disabilities for VA compensation services," which shows consideration of  38 U.S.C.A. § 1712 and 38 C.F.R. § 3.381, pertaining to establishing eligibility for outpatient dental treatment.  While the RO considered these latter provisions, the Board observes that such a claim is not for VBA consideration, as such claims must be developed and adjudicated by the Veterans Health Administration (VHA).  

With the above in mind, the Board concludes the issue on appeal actually represents two distinct claims for VA benefits:  (1) entitlement to service connection for a dental disability (claimed as gum disease) for compensation purposes, and (2) entitlement to service connection for a jaw disability, to include TMJ) (claimed as lock jaw.  Further, the Board concludes that the claim seeking service connection for a dental disability for compensation purposes stems from the Veteran's initial claim in November 1990, as it was never formally adjudicated by the RO until the pendency of the current appeal.  

Also, since the U.S Court of Appeals for Veterans Claims (the Court) has held that a claim of service connection for a dental disability is also considered a claim for VA outpatient dental treatment, seeMays v. Brown, 5 Vet. App. 302, 306 (1993), a claim for VA outpatient dental treatment is REFERRED to the Agency of Original Jurisdiction (AOJ) for further referral to the appropriate VA Medical Center (VAMC) under VHA, as there is nothing in the record to suggest that this was done at any time subsequent to the Veteran's initial claim in November 1990.  See 38 C.F.R. §§ 17.161; 19.9(b) (2017).

The appeal is REMANDED to the AOJ.  VA will notify the Veteran if further action is required.



FINDING OF FACT

The Veteran is not shown to have a current dental disability due to loss of substance of body of maxilla or mandible from trauma or disease such as osteomyelitis.


CONCLUSION OF LAW

Service connection for a dental disability (claimed as gum disease) for compensation purposes is not warranted.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 4.150 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The VCAA applies to the instant appeal.

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VCAA notice requirements apply to all five elements of a service connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

The Veteran was advised of VA's duties to notify and assist in the development of his service connection claim prior to its initial adjudication.  A January 2009 letter explained the evidence necessary to substantiate a claim for service connection, the evidence VA was responsible for providing, and the evidence he was responsible for providing, and informed him of disability rating and effective date criteria.  He has received all critical notice, and has had ample opportunity to respond/supplement the record.  He has not alleged prejudice from a notice defect.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing the rule of prejudicial error).

The Veteran's service treatment records have been secured, and the Veteran has not indicated that any post-service treatment reports are available and/or outstanding.  The Board finds that a medical opinion regarding the etiology of the claimed dental disability is not necessary; absent any competent evidence suggesting that the Veteran has a dental disorder for which service connection for compensation purposes may be granted, a medical nexus opinion is not warranted, as even the low threshold standard (for determining when an opinion is necessary) endorsed in McLendon v. Nicholson, 20 Vet. App. 27 (2006), is not met.  See 38 C.F.R. § 3.159(c)(4).

The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the matter of service connection for a dental disability (claimed as gum disease) for compensation purposes, and that no further development of the evidentiary record is necessary.  See generally 38 C.F.R. § 3.159(c)(4).  The Veteran has not identified any other pertinent evidence that remains outstanding.  VA's duty to assist as to this matter is met.

Legal Criteria, Factual Background, and Analysis

Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Diseases diagnosed after discharge may be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Establishing service connection requires evidence of: (1) a current disability; (2) a disease; injury, or event in service; and (3) a nexus between the claimed disability and the disease, injury, or event in service and the present disability.  See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may include statements conveying sound medical principles found in medical treatises.  Competent medical evidence may include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).  This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Board notes that it has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim being decided.

Analysis

The Veteran contends that he is entitled to service connection for a dental disability (claimed as gum disease) for compensation purposes, although the Veteran has not submitted any evidence showing or describing such a disease, to include symptoms of such, since he initially filed his initial claim in November 1990.

Throughout the period of the current claim, there is no evidence of any current dental disability, and the Veteran has not identified any occurrence of (or submitted any reports of) dental treatment at any time during the period of claim.

The Board notes that missing teeth may be compensable for rating purposes under 38 C.F.R. § 4.150, Diagnostic Code 9913 ("loss of teeth, due to loss of substance of body of maxilla or mandible without loss of continuity").  However, the Note immediately following Diagnostic Code 9913 states, "These ratings apply only to bone loss through trauma or disease such as osteomyelitis, and not to the loss of the alveolar process as a result of periodontal disease, since such loss is not considered disabling."  The Board further notes that the Veteran has not submitted evidence that any of his permanent teeth are missing, let alone due to loss of substance of body of maxilla or mandible through trauma or disease such as osteomyelitis

There is no evidence of record that the Veteran has a current dental disability which is due to loss of substance of body of maxilla or mandible through trauma or disease such as osteomyelitis, and he has not so alleged.  There is no evidence of record to show that the Veteran has had any bone loss of the maxilla, mandible, or hard palate at any time.

[The Board notes that, because the Veteran never had any loss of substance of body of maxilla or mandible (i.e., the bone loss requisite for service connection for loss of teeth for compensation purposes), no analysis is necessary regarding whether such loss is due to trauma or disease such as osteomyelitis.]

Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not considered disabling for VA disability compensation purposes; such conditions will be considered service connected solely for the purpose of establishing eligibility for outpatient dental treatment.  38 U.S.C.A. § 1712; 38 C.F.R. § 3.381.  As such, a claim for service connection for a dental condition for VA outpatient dental treatment purposes has been referred to the AOJ for appropriate action.

The Veteran has not presented any competent evidence that he has a dental disability for which service connection for compensation purposes may be granted.  He is a layperson and does not cite to supporting medical opinions or clinical or medical treatise evidence.

Based on the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's appeal seeking service connection for a dental disability (claimed as gum disease) for compensation purposes.  Hence, the appeal in this matter must be denied.

ORDER

The appeal seeking service connection for a dental disability (claimed as gum disease) for compensation purposes is denied.


REMAND





Accordingly, the case is REMANDED for the following actions:

1. 







The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________

Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs