Citation Nr: 18143332 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 18-43 923 DATE: October 18, 2018 ORDER Entitlement to service connection for a dental disorder for compensation purposes is denied. FINDING OF FACT The competent medical evidence does not reflect the Veteran has a current dental disorder for which compensation may be paid. CONCLUSION OF LAW The criteria for a grant of service connection for a dental disorder for compensation purposes are not met. 38 U.S.C. §§ 1712, 5107 (2012); 38 C.F.R. §§ 3.306, 3.381, 4.150, 17.161 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from December 1955 to August 1957. The Veteran's claim of entitlement to service connection for a dental disorder for compensation purposes was denied in a July 2015 rating decision on the basis that the condition neither occurred in, nor was caused by, service. The Veteran submitted a request for reconsideration of the RO’s denial in August 2015 and included a copy of a service treatment record documenting in-service dental trauma. In an October 2015 rating decision, the RO considered this a request to reopen the claim, granted the request to reopen based on new and material evidence, and denied the claim on the merits. As new and material evidence was received within one year of the July 2015 rating decision, that decision did not become final and remains on appeal. 38 C.F.R. § 3.156 (b)(2017). Therefore, the Board will consider the claim on the merits. The Board notes that the Veteran appears to be seeking service connection for treatment purposes, as distinguishable from the current appeal for compensation. The matter of the Veteran's entitlement to service connection for a dental disorder for treatment purposes has been raised by the record, but has not yet been adjudicated by the AOJ. See Mays v. Brown, 5 Vet. App. 302, 306 (1993) (a claim for service connection is also considered a claim for VA outpatient dental treatment). Therefore, the Board does not have jurisdiction over this matter. However, as noted in the August 2018 Statement of the Case, the Regional Office identified the VA Medical Center with jurisdiction over the claim for service connection for a dental disorder for treatment purposes and forwarded the Veteran’s claim to that Medical Center’s Dental Clinic for initial consideration. 1. Entitlement to service connection for a dental disorder for compensation purposes. The Veteran has asserted entitlement to service connection for a dental condition, loss of teeth, due to dental trauma sustained in service. Specifically, the Veteran reports that he sustained trauma to his teeth during service and his teeth were replaced with a bridge. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107 (b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Service connection may be awarded for missing teeth due to dental trauma or bone loss in service. The law and regulations also provide that treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are considered non-disabling conditions and may be considered service-connected solely for the purpose of determining entitlement to VA dental examination or outpatient dental treatment. See 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 17.161; see also Woodson v. Brown, 8 Vet. App. 352, 354 (1995). However, service connection for compensation purposes is only warranted for certain dental conditions. Specifically, dental disabilities that may be awarded compensable disability ratings are set forth under 38 C.F.R. § 4.150. These disabilities include 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, 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. 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. To establish entitlement to service connection for loss of a tooth, the Veteran must have sustained a combat wound or other in-service trauma. 38 U.S.C. § 1712; 38 C.F.R. § 3.381(b). The significance of finding that a dental condition is due to in- service trauma is that a veteran will be eligible for VA outpatient dental treatment, without being subject to the usual restrictions of a timely application and one-time treatment. 38 C.F.R. § 17.161 (c). In this case, the Veteran is contending entitlement to service connection for a dental condition due to dental trauma sustained in service. The Board notes service treatment records reveal the Veteran sustained a blow to the mouth from a chain in September 1956. Tooth number nine was knocked out and tooth number eight was fractured and removed in October 1956. In June 1957, teeth seven and ten were extracted and in August he was given a bridge to replace teeth seven, eight, nine and ten. A June 2015 VA examination confirmed that the Veteran sustained dental trauma that injured teeth eight and nine and found it was “probable” that it also resulted in the eventual loss of teeth seven and ten. The examiner opined that because of this documented history, it is at least as likely as not that the dental injury caused by a blow to the mouth in the line of duty during service resulted in the direct loss of teeth. However, the VA examiner did not diagnose the Veteran with 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, loss of teeth due to the loss of substance of the body of the maxilla or mandible. Moreover, the examiner noted that in the past the Veteran’s missing teeth had been replaced by a bridge, thus finding that the teeth were replaceable. Although the Veteran has provided competent reports of an in-service incurrence that is corroborated by his service treatment records, and has been provided a positive VA medical opinion finding that his missing teeth were due to trauma incurred in-service, the Board must find that service connection for compensation purposes must be denied as the diagnosed condition is not a dental disorder for which VA compensation may be paid. As a matter of law, the Board can only grant service connection for VA compensation purposes for missing teeth due to trauma resulting in loss of the mandible or maxilla or due to a disease such as osteomyelitis. As discussed above, the June 2015 VA examination indicates that the Veteran's loss of teeth was due to trauma rather than a disease such as osteomyelitis, and the Veteran does not other contend (and his service treatment records do not show) that he was diagnosed with a dental disease such as osteomyelitis. The June 2015 VA examination also makes clear that the Veteran's condition did not result in loss of substance of the mandible or maxilla, and that the missing teeth were replaceable - therefore, the Veteran is not entitled to service connection for his dental condition. For these reasons, the claim of service connection for a dental disorder for compensation purposes must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). JEBBY RASPUTNIS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Costello, Counsel