Citation Nr: 1805772 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 14-21 228 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for residuals of a broken dental bridge of the left jaw. REPRESENTATION Appellant represented by: Douglas Sullivan, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Department of Veterans Affairs INTRODUCTION The Veteran had active duty service from May 1969 to May 1970, from February 1991 to April 1991 and from January 2003 to September 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In April 2017, the Veteran provided testimony before the undersigned Veterans Law Judge at a video conference hearing. A transcript of the hearing is of record. FINDINGS OF FACT 1. A May 2004 rating decision denied a claim for service connection for a broken dental bridge of the left jaw; the Veteran did not file a notice of disagreement, and new and material evidence was not received during the one year period after the decision. 2. Evidence received since the May 2004 rating decision does not relate to an unestablished fact necessary to substantiate the claim for service connection for a dental disability and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The May 2004 rating decision that denied a claim for service connection for a broken dental bridge of the left jaw is final. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. New and material evidence has not been received to reopen a claim for service connection for residuals of a broken dental bridge of the left jaw. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Analysis The Veteran is seeking service connection for residuals of a broken dental bridge of the left jaw. As will be discussed below, this claim has been previously finally denied. The preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff'd, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). The Board must therefore proceed to analyze whether new and material evidence has been submitted since the prior final decision. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). New evidence is defined as evidence not previously submitted to agency decision makers. 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. New and material evidence can be neither 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. 38 C.F.R. § 3.156 (a). An adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the appellant in the development of his claim has been fulfilled. See 38 U.S.C.A. § 5108 (West 2012); Elkins v. West, 12 Vet. App. 209 (1999). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court held that once new and material evidence has been presented as to an unestablished fact from a previously denied claim for service connection, the claimant will be entitled to the full benefits of the Secretary's duty to assist, including a medical nexus examination, if one is warranted; it does not require new and material evidence as to each previously unproven element of a claim. After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2012); 38 C.F.R. §§ 3.102, 4.3 (2017). Under current VA regulations, compensation is only available for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla. Compensation is only paid for loss of teeth due to bone loss of substance of the body of maxilla or mandible without loss of continuity. See Note, 38 C.F.R. § 4.150, Diagnostic Code 9913. Compensation is also paid for disease such as osteomyelitis and not the loss of the alveolar process as a result of periodontal disease, since such loss is not considered disabling. Id. It follows that to obtain service connection for a dental disability for VA compensation purposes there must be a showing that trauma has caused a loss of substance of the body of the maxilla or mandible resulting in a loss of teeth. A May 2004 rating decision denied a claim for service connection for a broken dental bridge of the left jaw. The Veteran did not file a notice of disagreement within one year of that decision and new and material evidence was not received withing the one year period thereafter. As such, it became final. 38 U.S.C.A. § 7105. The claim may be reopened if new and material evidence is received. At the time of the May 2004 rating decision, the evidence in the claims file consisted of the Veteran's service treatment records, to include dental treatment records and an April 2004 VA examination report. The dental treatment records show that the Veteran broke his dental bridge in January 2003 while eating at the dining hall. A false tooth was removed from the bridge and the abutment crowns were recemented as a temporary measure to allow for deployment to Kuwait. An April 2004 VA (QTC) examination report shows that upon the Veteran's return to the United States there was not enough time to complete the replacement of the bridge before he left active duty service to Reserve status in August 2003. The Veteran was diagnosed as having a broken dental bridge #17 to 20 that needed to be replaced either by a new bridge or an implant and crown. The RO denied the claim in May 2004 on the basis that the broken dental bridge of the left jaw was considered to be unrelated to military service and was not subject to service connection. Since the May 2004 RO decision, the evidence in the file includes the Veteran's statements and April 2017 hearing testimony that his dental bridge was broken as a result of an accident to his mouth. He states that during service he was hit in the mouth with a microphone shortly before dinner and that he discovered that the bridge had broken while eating at the dining hall. Also of record are current VA treatment records documenting ongoing dental treatment relating to the broken dental bridge. The Board finds that new and material evidence has not been received because the additional evidence does not suggest that the Veteran has a present dental or mouth disability for VA compensation purposes; compensation is only paid for loss of teeth due to loss of substance of the body of maxilla or mandible. Note, 38 C.F.R. § 4.150, Diagnostic Code 9913. The Veteran's statements and hearing testimony only show what was already known through the dental records; that he had a broken dental bridge of the left jaw during service. What was not shown in May 2004 and is not shown now is that the Veteran suffered trauma that caused a loss of substance of the body of the maxilla or mandible resulting in a loss of teeth. There is still no dental disability for VA compensation purposes. Thus, the evidence, by itself or when considered in conjunction with the evidence previously of record, does not relate to unestablished facts necessary to substantiate the Veteran's claim and does not raise a reasonable possibility of substantiating his claim. Therefore, the Board finds that new and material evidence has not been received and the claim for service connection for residuals of a broken bridge of the left jaw is not reopened. ORDER New and material evidence has not been received to reopen a previously denied claim for service connection for residuals of a broken dental bridge of the left jaw, and the appeal is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs