Citation Nr: 18141865 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 15-19 404 DATE: October 11, 2018 ORDER Service connection for periodontal disease, claimed as gum disease with loss of teeth, for compensation purposes is denied. FINDING OF FACT The Veteran does not have a dental disability for which service connection for compensation purposes may be awarded. CONCLUSION OF LAW The criteria for service connection for periodontal disease, claimed as gum disease with loss of teeth, for VA compensation purposes are not met. 38 U.S.C. §§ 1110, 1712, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310, 4.150. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from June 1970 to April 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for the Veteran’s claimed dental disorder for compensation purposes. In this regard, service connection may be awarded for dental disorders for (1) compensation benefits and/or (2) outpatient dental treatment purposes. Pursuant to Veterans Benefit Administration (VBA) Fast Letter 12-18 (July 10, 2012), claims for outpatient dental treatment submitted to VBA should be referred to the Veterans Health Administration (VHA) for preparation of a dental treatment rating. See 38 C.F.R. § 3.381. In the present case, the record reflects that the issue of entitlement to service connection for a dental disorder for outpatient dental treatment purposes has been raised. See Mays v. Brown, 5 Vet. App. 302 (1993) (any claim for service connection for a dental condition is also a claim for VA outpatient dental treatment). Review of the file reveals, however, that the Agency of Original Jurisdiction (AOJ) (i.e., VBA) has only adjudicated the issue of entitlement to service connection for a dental disorder for VA compensation purposes. As it is unclear whether any claim for outpatient treatment has yet been considered and/or referred to VHA, it is referred to the AOJ (which, in this case, is VHA) for appropriate action. In this regard, the Board is cognizant that the Veteran reported that he was denied by VHA for service connection for a dental disorder for outpatient dental treatment purposes; however, such denial is not on file and there is no indication that he appealed such determination. Consequently, upon review of the record, the only matter that the Board may properly consider at this time is entitlement to service connection for a dental disorder for compensation purposes. In November 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. At such time, he waived AOJ consideration of the evidence associated with the record since the issuance of the March 2017 supplemental statement of the case. 38 C.F.R. § 20.1304(c). The Board further notes that, subsequent to the hearing, the Veteran submitted additional evidence in May 2018. As his substantive appeal was received in May 2015, a waiver of AOJ consideration of such submitted evidence is not necessary. 38 U.S.C. § 7105(e)(1). Entitlement to service connection for periodontal disease, claimed as gum disease with loss of teeth, claimed as secondary to service-connected diabetes mellitus, type II. The Veteran claims that his periodontal disease, described as gum disease with loss of teeth, is caused or aggravated by his service-connected diabetes mellitus, type II. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 U.S.C. § 1110; 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). However, under current legal authority, compensation is only available for certain types of dental and oral conditions, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla. See 38 C.F.R. § 4.150. Compensation is available for loss of teeth only if such loss is due to loss of substance of the body of the maxilla or mandible during service due to trauma or disease such as osteomyelitis, and not ot the loss of the alveolar process as a result of periodontal disease. 38 C.F.R. § 4.150, Diagnostic Code 9913 (Note). Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease cannot be service-connected for purposes of compensation. 38 C.F.R. § 3.381. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In the instant case, there is no evidence that the Veteran has a dental disorder for which compensation may be payable. Specifically, as indicated previously, compensation is available for loss of teeth only if such loss is due to loss of substance of the body of the maxilla or mandible during service due to trauma or disease such as osteomyelitis, and not to the loss of the alveolar process as a result of periodontal disease. Here, the Veteran reports that his diabetes mellitus, type II, has caused gum disease, which resulted in the loss of teeth. Indeed, a March 2014 private treatment record from his periodontist indicates that the Veteran had been diagnosed with periodontitis and was diabetic. In this regard, it was noted that diabetic patients were much more likely to develop periodontal disease than the average person, and severe periodontal disease could increase blood sugar, thereby contributing to increased periods of time when the body functions with a high blood sugar, which results in an increased risk for diabetic complications. Furthermore, a May 2018 private treatment record notes that the Veteran had two teeth extracted due to a chronic infection. However, there is no evidence that the Veteran’s loss of teeth was due to loss of substance of the body of the maxilla or mandible during service due to trauma or disease such as osteomyelitis; rather, such loss of teeth is the result of periodontal disease. In this regard, in association with an August 2014 VA examination, it was specifically reported that the Veteran was diagnosed with periodontal disease and not have any of the following dental or oral conditions: mandible, including anatomical loss or bony injury (NOT due to edentulous atrophy or periodontal disease); maxilla, including anatomical loss or bony injury (NOT due to edentulous atrophy or periodontal disease); teeth, including anatomical loss or bony injury (NOT due to edentulous atrophy or periodontal disease); mouth, lips, tongue and disfiguring scars (anatomical loss or injury); osteomyelitis/osteoradionecrosis/ bisphosphonate-related osteonecrosis of the jaw; or tumors and neoplasms. The Board observes that, in written correspondences dated throughout the appeal period and during his November 2017 Board hearing, the Veteran challenged the adequacy of the August 2014 VA examination. Specifically, he indicated that the examination was performed by an individual who was not a dentist or periodontist (rather, she was a nurse practitioner) and such consisted only of his mouth being examined with a flashlight for a short period of time. The Veteran further indicated that he disagreed with the findings of the examination (which appears to be in reference to the examiner’s opinion that his gum disease with loss of teeth was less likely than not proximately due to or the result of, or secondary to, his service-connected diabetes mellitus, type II). In this regard, the Board notes that VA satisfies its duty to assist when it provides a medical examination performed by a person who is qualified through educations, training, or experience to offer medical diagnosis, statements, or opinions, whether that is a doctor, nurse practitioner, or physician’s assistant. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (physician’s assistant was competent to perform examination); Goss v. Brown, 9 Vet. App. 109 (1996) (recognizing that nurses’ statements regarding nexus were sufficient to make a claim well grounded); Williams v. Brown, 4 Vet. App. 270, 273 (1993) (finding opinions of a VA registered nurse therapist competent medical testimony and requiring the Board to provide reasons or basis for finding those opinions unpersuasive). Furthermore, the Board may assume a VA medical examiner is competent. Cox, supra; Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009) (VA has no obligation to present affirmative evidence of a VA physician’s qualifications during Board proceedings, absent a challenge by the veteran); Hilkert v. West, 12 Vet. App. 145, 151 (1999) (an appellant bears the burden of persuasion to show that the Board’s reliance on an examiner’s opinion was in error). In the instant case, the Board finds that the Veteran has only made generalized statements as to the August 2014 VA examiner’s qualifications and have not met his burden of persuading the Board that she was not qualified to offer a medical diagnosis and opinion. Thus, absent any indication beyond a general statement by the Veteran, she is presumed to be qualified to offer such with respect to the Veteran’s gum disease with loss of teeth. See Cox, supra; Rizzo, supra. Furthermore, the findings rendered by the August 2014 VA examiner are consistent with those reported by the March 2014 and May 2018 private periodontists. Specifically, all such individuals found that the Veteran had a diagnosis of periodontal disease, which resulted in the loss of teeth. However, as noted previously, such is not a dental disability for which compensation is payable. Consequently, the etiology of such disease is irrelevant. Thus, inasmuch as the Veteran does not have a dental disorder for which VA compensation benefits are payable, the claim for service connection for periodontal disease, claimed as gum disease with loss of teeth, for VA compensation purposes must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence weighs against this claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert, supra. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Koria B. Stanton, Associate Counsel