Citation Nr: 18143711 Decision Date: 10/22/18 Archive Date: 10/19/18 DOCKET NO. 15-43 995 DATE: October 22, 2018 ORDER Service connection for loss of teeth is denied. REMANDED Entitlement to a compensable rating for a mandibular fracture. FINDING OF FACT The Veteran's loss of teeth did not result from inservice trauma. CONCLUSION OF LAW The criteria for service connection for the loss of teeth for compensation purposes are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.381, 4.150, 17.161 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1966 to October 1969, from March 1970 to March 1972, and from May 1972 to January 1987. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision. The Veteran is unrepresented in this appeal. This appeal does not involve a claim for VA outpatient dental treatment. Mays v. Brown, 5 Vet. App. 302 (1993). Duties to Notify and Assist The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Laws and regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2018). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service- the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2018). In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2018); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4, provides compensable disability ratings for the loss of teeth due to the loss of substance of the body of the maxilla or mandible. 38 C.F.R. § 4.150, Diagnostic Code 9913. It is noted that 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. VA law provides that treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease will be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment, and rating action should consider each defective or missing tooth and each disease of the teeth and periodontal tissues separately to determine whether the condition was incurred or aggravated in line of duty during active service and, when applicable, to determine whether the condition is due to combat or other in-service trauma, or whether the veteran was interned as a prisoner of war. 38 U.S.C. § 1712; 38 C.F.R. § 3.381. VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran’s military records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a). Background The Veteran asserts that his loss of teeth is related to his active service. The Veteran's December 1965 service enlistment examination did not indicate that any of the Veteran's teeth were missing. Service treatment records (STRs) indicate that in November 1972 the Veteran fell down an elevator shaft on board ship. His injuries included a head injury consisting of a concussion and a mandibular fracture for which service connection is in effect. Upon follow-up to the November 1972 incident gradual tightening of the alveolar fracture involving teeth #24 and #25 was noted. Examination in March 1973 revealed that teeth #24 and #25 were "firmly fixed in place." A December 1986 service discharge examination noted that teeth # 1, 14, 15, 16, 17, 18, and 30 were missing. A July 1987 VA dental record indicated that teeth # 1, 14, 15, 16, 17, 18, and 30 were missing. VA dental records beginning in June 1999 noted that the Veteran had moderate to severe generalized periodontal disease and multiple "missing, carious and malposed teeth." Extractions of various teeth are of record beginning in July 2009. Tooth #25 was extracted in August 2006, and another record dated in August 2006 indicated that tooth #24 was missing. At a June 2012 VA dental examination the examiner indicated that he was unable to determine the cause of the Veteran's teeth extraction. The June 2012 VA examiner did not note that the Veteran's STRs or VA records were reviewed. In an April 2013 addendum the examiner stated that it was not likely that the Veteran's loss of teeth was due to trauma in service. The examiner noted that there had been no loss of teeth secondary to the 1972 service injury, and further noted that postoperative records "also indicate no loss of dentition." In a July 2013 VA medical opinion, the VA dentist opined that the Veteran’s tooth loss is not related to his in-service injury. The examiner noted that following his injury, the hospital records available show that no teeth were lost following the injury, and that upon discharge, teeth #24 and 25 which were mobile after the incident, were no longer mobile and deemed healthy. Also, an examination in 1987 show that the veteran was only missing teeth #14, 15, 30 at that time. The examiner then noted that these two reports in particular, along with other examination records, show that the veteran's teeth were in relatively stable condition following the injury through 1987. Finally, the examiner stated that his opinion was in agreement with the 2013 opinion. Although there is clear evidence that the Veteran was treated for problems with his teeth during service, the competent dental opinion of record indicates that the Veteran’s loss of teeth was not due to dental trauma during service. Further, STRs (including the multiple Report of Physical Examinations) do not note the absence of either teeth #24 or #25. Although the Veteran was treated for some dental complaints during service, the term “service trauma” does not include the intended effects of therapy or restorative dental care and treatment provided during a Veteran’s military service. See 38 C.F.R. § 3.306(b)(1) (2018); VAOGCPREC 5-97. In sum, the record does not indicate that any trauma during service caused damage that resulted in the loss of any teeth. The Veteran has not asserted that he lost any teeth during service, and his statements purporting to provide a nexus opinion between his teeth loss and service are not competent. Ascertaining the etiology of the Veteran’s particular dental disabilities requires medical expertise. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (providing that although a veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, a veteran is not competent to provide evidence as to more complex medical questions). The Board has been mindful of the “benefit-of-the-doubt” rule, but, in this case, there is not such an approximate balance of the positive and negative evidence to permit a favorable determination. REASONS FOR REMAND Remand is required for a current VA examination regarding the claim for an increased evaluation for a mandibular fracture. When a claimant asserts, or the evidence shows, that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); Snuffer v. Gober, 10 Vet. App. 400 (1997). VA last examined the Veteran with respect to this disability in April 2013. Although the mere passage of time does not require that a claim be remanded, the Board finds that the medical evidence of record is insufficient to accurately rate the Veteran's disability. The essence of the Veteran's notice of disagreement and substantive appeal is that his mandibular condition has worsened in the five years since the most recent VA examination. Accordingly, the Veteran should be afforded a VA dental examination. The matter is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment on and after April 16, 2013. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and representative (if any). 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and representative (if any). 3. After any additional records are associated with the claims file, provide the Veteran with a VA dental examination to determine the current severity of his service-connected mandibular disability. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must utilize the appropriate Disability Benefits Questionnaire. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. 3.158, 3.655 (2018). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD David Nelson