Citation Nr: 1804943 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 16-59 981 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a dental condition. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from January 1955 to December 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ), seated at the RO. A transcript of the hearing has been associated with the claims file. A claim for service connection for a dental disorder is also considered a claim for VA outpatient dental treatment. Mays v. Brown, 5 Vet. App. 302, 306 (1993). During VA treatment in June 2009, the Veteran requested referral for dental treatment. In a September 2012 statement, the Veteran asserted entitlement to dental treatment. It does not appear that the RO has taken action on any claim of entitlement to service connection for a dental disorder, for purposes of VA outpatient dental treatment, and such is thus is referred to the Agency of Original Jurisdiction (AOJ) for referral to the appropriate VA Medical Center (VAMC). 38 C.F.R. § 19.9 (b) (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. A March 2013 rating decision denied entitlement to service connection for a dental condition; the Veteran did not perfect an appeal. 2. Additional evidence received since the March 2013 rating decision is not new, in part, and does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for a dental condition. CONCLUSIONS OF LAW 1. The March 2013 rating decision, which denied entitlement to service connection for a dental condition, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence has not been submitted to reopen the claim of entitlement to service connection for a dental condition. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Petition to Reopen The Veteran has filed a petition to reopen the previously denied claim of entitlement to service connection for a dental condition. For the following reasons, the Board finds that reopening is not warranted. Service connection for a dental condition was initially denied in a March 2013 rating decision. In a March 2013 letter, the Veteran was notified of this decision and his appellate rights. He initiated appellate review by submitting an August 2013 timely notice of disagreement (NOD). The RO issued a May 2014 statement of the case (SOC); however, the Veteran did not submit a substantive appeal. New and material evidence was not received within one year of the date of mailing of the March 2013 rating decision. See 38 C.F.R. § 3.156 (b) (providing that if new and material evidence is received within one year after the date of mailing of an RO decision, it may be "considered as having been filed in connection with the claim which was pending at the beginning of the appeal period"); Buie v. Shinseki, 24 Vet. App. 242, 252 (2010) (noting that a regional office decision becomes final "only after the period for appeal has run," and that "[a]ny interim submissions before finality must be considered by the VA as part of the original claim"); Young v. Shinseki, 22 Vet. App. 461, 466 (2009) (holding that new and material evidence received within one year of an RO decision prevents that decision from becoming final). Consequently, because the Veteran did not perfect an appeal of the March 2013 rating decision, and because new and material evidence was not received within one year of the date of its mailing, that rating decision is final. See 38 U.S.C. § 7105 (c); 38 C.F.R. § 20.1103. VA may reopen a previously and finally disallowed claim when "new and material" evidence is presented or secured with respect to that claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156 (a). This assessment requires a review of all evidence submitted by or on behalf of a claimant since the last final denial, regardless of whether it was on the merits or on procedural grounds, to determine whether a claim may be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). VA regulation defines "new and material evidence" as follows. "New evidence" means evidence not previously submitted to agency decision makers, and "material evidence" means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156 (a). In order to warrant reopening, the new evidence must neither be cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id.; see Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (the requirement that newly submitted evidence raise a reasonable possibility of substantiating the claim is a "low threshold."). Service connection for a dental condition was denied in the March 2013 rating decision on the basis that the RO found that compensation is only granted for the disability claimed when there is evidence of damage involving the bony structure of the jaw due to combat or trauma, and there was no evidence that such was incurred during in-service, that there was no evidence of an injury or diagnosis or treatment of a traumatic injury to the mouth. Since the March 2013 rating decision, the evidence of record includes the Veteran's testimony at his May 2016 hearing before a decision review officer (DRO) at the RO and at his November 2017 Board hearing, as well as a statement on his December 2016 substantive appeal. While these statements, in this form, were not before decision makers at the time of the March 2013 rating decision, the statements are cumulative or redundant of the evidence of record at that time. Specifically, in a June 2010 statement, the Veteran described his dental history, that while stationed in Germany during service, he went to the post clinic and the dentist looked at his problem tooth and after filling such, asked if the Veteran was interested in a bridge to replace some missing teeth. He reported that he was sent to another clinic in Germany and was given a partial plate that never fit correctly, even after the dentist filed and ground his teeth several times. He asserted that he was never able to wear the plate as it was too uncomfortable and in 1963, after separation from service, he sought private dental treatment and was informed that his in-service filing and grinding of his teeth altered his bite, causing his teeth to wear down. He asserted that his top front teeth have broken due to such, causing the need for bonding, and that his lower teeth have been worn to stumps, and that he is sensitive to temperature and has altered speech. The Veteran recited almost the identical dental history and assertions as to the cause of his current dental condition during his DRO and Board hearings and in his substantive appeal. Of record is also a November 2017 opinion from the Veteran's private dentist. He reported that the Veteran suffered from a severe overbite which was, in part, caused by premature posterior tooth loss, and according to Veteran, significant grinding of his teeth during service. He reported that the overbite placed significantly higher stress on his anterior teeth leading to chipping and premature failure of anterior restorations. The private dentist diagnosed the Veteran with an overbite and repeated the Veteran's assertions that such was caused by his in-service dental treatment, as the Veteran had reported in his prior statements. The private dentist did not report that service treatment records included evidence of an in-service injury or diagnosis or treatment of a traumatic injury to the mouth. The evidence from the Veteran, his statements made during his DRO and Board hearing, and on his substantive appeal, is thus not new evidence, as such is in essence cumulative or redundant of the evidence of record at the time of the March 2013 rating decision. The evidence from the Veteran's private dentist, while new, as it was not before decision makers at the time of the March 2013 rating decision, is thus not material evidence, as it does not relate to an unestablished fact necessary to substantiate the claim, in this case, evidence of damage involving the bony structure of the jaw due to combat or trauma, evidence that there was an in-service injury or diagnosis or treatment of a traumatic injury to the mouth. In sum, the evidence received since the final March 2013 rating decision is not new, in part, considering the Veteran's DRO and Board hearing testimony and statement on his substantive appeal, and is not material, as the private dentist's opinion, while new, does not relate to an unestablished fact necessary to substantiate the claim. Thus, the Board finds that new and material evidence has not been submitted and the claim of entitlement to service connection for a dental condition is not reopened. See 38 C.F.R. § 3.156 (a). ORDER The petition to reopen the claim of entitlement to service connection for a dental condition is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs