Citation Nr: 18145138 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 16-22 307 DATE: October 26, 2018 ORDER New and material evidence having not been received, reopening the claim of compensation for residuals of a broken upper front tooth is denied. FINDING OF FACT 1. The Agency of Original Jurisdiction (AOJ) last denied compensation for residuals of a broken upper front tooth in an unappealed May 2008 rating decision. 2. The evidence received since the May 2008 rating decision is either redundant evidence, or is not material insofar as it does not relate to unestablished facts necessary to substantiate the claim for compensation for residuals of a broken upper front tooth. CONCLUSION OF LAW 1. The May 2008 rating decision that denied compensation for residuals of a broken upper front tooth is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. The criteria for reopening the claim of service connection for residuals of a broken upper front tooth are not met. 38 U.S.C. §§ 1712, 5108, 7104; 38 C.F.R. §§ 3.156, 3.381, 4.150. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from March 1980 to March 1984, October 1984 to October 1988, and January to May 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in May 2017. A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or unaddressed new and material evidence is received during the appeal period of the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. The withdrawal of an appeal is deemed a withdrawal of the notice of disagreement and of the substantive appeal. 38 C.F.R. § 20.204(c). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as existing 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). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Under current VA regulations, compensation is only available for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150, including conditions of the mandible, maxilla, ramus, condyloid process, coronoid process, hard palate, and loss of teeth due to loss of substance of the body of the maxilla or mandible. See 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. These conditions include loss of whole or part of the mandible, nonunion or malunion of the mandible, loss of whole or part of the ramus, loss of whole or part of the maxilla, nonunion or malunion of the maxilla, loss of the condyloid or coronoid process, or loss of any part of the hard palate. Compensation is also available for loss of teeth only if such is due to loss of substance of body of maxilla or mandible; bone loss through trauma or disease, such as osteomyelitis, must be shown for compensable purposes. The loss of the alveolar process as a result of periodontal disease is not considered disabling. See 38 C.F.R. § 4.150, Diagnostic Code 9913. In addition, to be compensable, the lost masticatory surface for any tooth cannot be restorable by suitable prosthesis. 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 cannot be considered for compensation purposes. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150. Otherwise, a veteran may be entitled to service connection for dental conditions including treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease, for the sole purposes of receiving VA outpatient dental services and treatment, if certain criteria are met. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 17.161. The rating activity 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 C.F.R. § 3.381(b). The Veteran initially filed a claim for his residuals of a broken upper front tooth in January 2008. Of record at that time, his service dental treatment records indicated that he was treated for problems with his number 9 tooth in March 1983 after he was in an altercation. He underwent a VA dental examination in March 2008, at which time the examiner noted that the Veteran broke his upper front tooth in an altercation during service in 1983; the Veteran reported he had a root canal and that he had a post and crown placed in 1984. He lost the crown in 2004, and he had it replaced by a private facility in 2006. On examination, the crown of the number 9 tooth was missing but the root was retained. There was no loss of motion with a maximum opening of 30 mm, with 10 mm right and 1 mm left lateral movements without pain. He had a 50 percent overlap without overjet. There was no appreciable bone loss surrounding tooth number 9. He was currently wearing a temporary partial replacing tooth number 9 and it appeared that tooth number 9 needed to be removed and replaced by a bridge or implant. It was noted that he had a broken post related in the root of tooth number 9 and x-rays revealed a wide canal in the tooth. There was very little tooth structure above the bone. The examiner reiterated that there was no bone loss in the area of tooth number 9 seen, and diagnosed the Veteran with a fracture of tooth number 9 during military service due to trauma. Based on the above evidence, the AOJ denied compensation for residuals of a broken upper front tooth in a May 2008 rating decision. The AOJ noted at that time that there was no evidence that his tooth could not be replaced by some type of prosthetic or implant at that time and because his tooth could be replaced, compensation must be denied. The Veteran was informed of that denial in a June 2008 notification letter. The Veteran did not submit any additional new and material evidence with respect to his dental claim within one year of that June 2008 notification letter. Likewise, although the Veteran submitted and VA accepted as timely March 2009 notice of disagreement with that May 2008 rating decision, the issues with which he disagreed in that document were his irritable bowel syndrome, right knee, and right hand claims. In short, the Veteran also did not submit a timely notice of disagreement with the denial of his dental claim within one year of the June 2008 notification letter. As no notice of disagreement or new and material evidence was received respecting the dental claim within one year of the June 2008 notification letter, the May 2008 rating decision is final. See 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.1103; Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). New and material evidence is therefore required to reopen the claim of compensation for residuals of a broken upper front tooth. See 38 U.S.C. § 5108; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156. In order to reopen the claim in this case, the Veteran must submit evidence that he has a compensable dental disability. In other words, even though the Veteran may have fractured a tooth due to trauma in service, in order to be compensated for that tooth loss, such tooth loss must be due to loss of substance of body of maxilla or mandible, or the result of bone loss through trauma or disease, such as osteomyelitis. Finally, the Veteran may also demonstrate that he has lost the masticatory surface for any tooth which cannot be restored by suitable prosthesis. The evidence received from the Veteran since the May 2008 rating decision include copies of the March 2008 VA dental examination, and the service dental treatment records in which he is shown to have had treatment for tooth number 9 following an altercation. The Board reflects that these records were of record and considered in the May 2008 rating decision; they are redundant evidence, and therefore they are not new records. Additionally, the evidence received since the May 2008 rating decision includes July 2012 and October 2013 statements from the Veteran’s representative requesting reopening of his claim and indicating that he broke his tooth in a fight during military service. The Veteran made similar statements in his April 2015 notice of disagreement. The Board reflects that these statements are substantially similar statements to those that were made by the Veteran previous, and they are a redundant recitation of the factual record as it was known prior to the May 2008 rating decision. Accordingly, the Board does not find these statements to be new or material in this case. Additional VA treatment records have also been associated with the claims file since May 2008; however, none of those records relate to any dental treatment. Those records are likewise not material or relevant in this case. Finally, the Veteran testified in a May 2017 hearing before the undersigned Veterans Law Judge respecting his dental claim. The Veteran testified again that he was in a fight and that during military service he had a root canal and was given a temporary post and crown for tooth number 9 following that altercation; he indicated that crown lasted until 2004, when he had it replaced by a private facility. He indicated that the private facility put in an implant. He testified specifically, “I have an implant and a crown.” Finally, the Veteran testified that he did not have any damage to his jaw or mandible during military service. The Board finds that the Veteran’s hearing testimony, though new, is not material evidence. The Veteran clearly indicated that he did not have any tooth loss as a result of the loss of substance of the body of the maxilla or mandible. He also clearly denied any trauma or problems with his mandible and jaw in his testimony. Therefore, there is no material evidence as to this portion of whether there is evidence of a compensable dental disability shown since May 2008. Likewise, there is no evidence of record that he has any bone loss through either trauma or osteomyelitis that resulted in his tooth loss. Again, while the Veteran’s evidence is redundant that he sustained the loss of his tooth through trauma (i.e., an altercation), merely showing trauma in service is not the end of the inquiry in whether compensation is warranted. Rather, such trauma must have resulted in bone loss in order to be compensated. The Veteran’s hearing testimony does not demonstrate any such bone loss in this case. Rather, the most probative evidence of record as to that issue is the March 2008 VA examination report, wherein there was no evidence of bone loss noted around tooth number 9. The Veteran has not submitted any evidence to refute these findings and has not explicitly indicated in his testimony that he has any bone loss as a result of the trauma he had during service. Therefore, the Board must also find that there is no material evidence as to this issue related to whether there is a compensable dental disability present since May 2008. Finally, the Veteran’s testimony regarding whether he has restorable missing teeth is fairly clear that he received an implant and a crown for tooth number nine. Consequently, the Board cannot find that the Veteran’s testimony is material evidence that he has lost the masticatory surface of tooth number 9 which could not be restored by suitable prosthesis; the Veteran very clearly was given a suitable prosthesis in this case, as he has testified to at his hearing. Accordingly, although the Veteran has testified and provided new evidence in this case, the Board cannot find that any of that evidence is material evidence that relates to unestablished facts necessary to substantiate a claim for compensation for residuals of a broken upper front tooth in this case, as such evidence does not demonstrate the presence of a compensable dental disability. The Board must therefore deny reopening the claim at this time, as new and material evidence has not been received in this case. See 38 U.S.C. §§ 1712, 5108; 38 C.F.R. §§ 3.156, 3.381, 4.150. As a final matter, although the Board acknowledges that the Veteran has identified private dental records in this case which have not been obtained and which are not associated with the claims file, the Board finds that a remand to obtain those records is not necessary in this case as they are not pertinent to the claim. As noted above, the Veteran has denied any issues with bone loss, loss of the substance of the body of the maxilla or mandible, or that he does not have unrestorable missing teeth. The Veteran quite clearly indicated that the private treatment records would demonstrate that they were able to give him a dental implant and a crown. As replaceable missing teeth are not compensable, the Board finds that a delay in adjudication of this case in order to get private treatment records that the Veteran has admitted would merely demonstrate a noncompensable dental condition, the Board finds that those records are not pertinent in this case and that no interests are served in further delaying adjudication of this case. Finally, insofar as the Veteran’s claim for a dental disorder encompasses a claim for treatment purposes, the Board does not address that claim at this time as it does not appear by any evidence of record that the Veteran has been denied treatment for his dental disorder at any time throughout the appeal period. If the Veteran wishes to pursue a claim for dental treatment, such claim may be pursued with the AOJ at any time. Accordingly, the Board will not discuss the treatment issue further. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Peters, Counsel