Citation Nr: 18147143 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 18-42 071 DATE: November 2, 2018 ORDER The motion to revise or reverse the September 12, 2007 Board decision due to due to clear and unmistakable error (CUE) is granted; the appeal is reactivated. FINDING OF FACT The Board’s September 12, 2007 decision dismissing the claim of entitlement to service connection for residuals of in-service dental trauma, to include damage to tooth number 8, was not consistent with applicable law and regulations existing at that time and contains an error which, had it not been made, would have manifestly changed the outcome of the claim. CONCLUSION OF LAW The September 12, 2007 Board decision that dismissed a claim of entitlement to service connection for residuals of in-service dental trauma, to include damage to tooth number 8, was clearly and unmistakably erroneous. 38 U.S.C. § 7111; 38 C.F.R. § 20.1400-20.1411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1971 to June 1974. (The application to reopen a claim for entitlement to service connection for a head injury; the claims for service connection for an acquired psychiatric disorder, a gastrointestinal disorder, a right knee disability, a headache disorder, and dental trauma for compensation purposes, and; the claim for an increased rating for residuals of a right fifth metacarpal fracture, are addressed in a separate decision.) Whether a September 12, 2007 Board decision dismissing the Veteran’s claim for service connection for residuals of in-service dental trauma, to include damage to tooth number 8, for compensation purposes, should be revised or reversed due to CUE. A Board decision is subject to revision on the grounds of CUE. If evidence establishes this type of error, the prior decision shall be reversed or revised. 38 U.S.C. 7111. CUE is a very specific and rare kind of error, of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. 38 U.S.C. 7111; 38 C.F.R. § 20.1403 (a). Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied. Id. A determination of CUE in a prior Board decision must be based on the record and the law that existed when that decision was made. 38 C.F.R. § 20.1403 (b)(1). To warrant revision of a Board decision on the grounds of CUE, there must have been an error in the Board’s adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be CUE. 38 C.F.R. § 20.1403 (c). The Veteran claimed that in December 1971, during service, he was struck by a piece of equipment on the face resulting in loss of tooth number 8. The service treatment records show that tooth number 8 was present on service induction, but not on separation from service. The June 1974 separation examination noted Type 3, Class 1 dental. The service treatment records do not document any dental or head injury, although in a report of medical history on separation from service in June 1974 the Veteran endorsed a history of head injury. An April 1980 rating decision granted service connection for residuals of in-service dental trauma, to include damage to tooth number 8, for the purpose of VA dental treatment. The Regional Office (RO) conceded in-service dental trauma based on incomplete service treatment records, the Veteran’s testimony, and evidence in the claims file that tooth number 8 was present on service induction, but not on separation from service. Under 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. 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). In March 2003 the Veteran submitted a claim for dental compensation. He specifically claimed payment of monetary benefits for his dental condition. VA treatment records after 2002 document treatment for periodontal disease. On VA examination in August 2003 a VA examiner noted that tooth number 8 was injured when a piece of aircraft machinery hit teeth numbers 8 and 9. Tooth number 9 was saved and number 8 had to be extracted. After discharge from service, tooth number 8 was rep1aced with a fixed bridge from teeth numbers 7 to 9. Thereafter tooth number 7 had to be extracted and he had a bridge from tooth number 6 to 9. The examiner also noted numerous missing teeth, numbers 3, 5, 7, 8, 12, 14, 16, 17, 29, 30, 31, and 32. The examiner reported moderate bone loss and need for upper and lower partials. The September 12, 2007 Board decision dismissed the claim on the grounds that service connection had already been established for tooth number 8 in an April 1980 rating decision. However, as noted, while service connection was established for the purpose of VA dental treatment, the Veteran’s claim for dental compensation was dismissed and not adjudicated. Accordingly, it is undebatable that the Board clearly and unmistakably erred when it dismissed the Veteran’s claim for dental compensation as that benefit has not yet been established. In sum, the Board finds that the regulation in effect at the time of the September 12, 2007 Board decision was incorrectly applied, and had it not, the outcome of the decision would have been manifestly different as the claim would have been adjudicated on the merits or remanded for further development. In view of this finding, the Board concludes that the Board’s decision of September 12, 2007 was clearly and unmistakably erroneous in finding that the claim for dental compensation had been granted by the RO in April 1980 and should be dismissed. Thus, the motion is granted and the dismissal of the appeal is revised to reactivate the appeal. JOHN J CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs