Citation Nr: 18151212 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 16-50 258 DATE: November 16, 2018 ORDER New and material evidence not having been received, reopening service connection for a left rib cage disorder is denied. Service connection for a dental disorder for VA compensation purposes is denied. FINDINGS OF FACT 1. A January 2012 rating decision denied service connection for a left rib cage disorder on the basis that the evidence did not show a disability or injury occurred in or was otherwise caused by service. 2. The Veteran did not timely file a notice of disagreement (NOD) following the January 2012 rating decision, and new and material evidence was not received during the one-year appeal period following that decision. 3. Evidence received since the January 2012 rating decision is either duplicative or cumulative of evidence previously considered or does not relate to a previously unestablished fact of a disability or injury that occurred during service that is necessary to substantiate the claim for service connection for a left rib disorder 4. The Veteran does not have a current dental disability subject to VA compensation. CONCLUSIONS OF LAW 1. The January 2012 rating decision denying service connection for a left rib cage disorder became final; new and material evidence has not been received to reopen service connection for a left rib cage disorder. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 2. The criteria for service connection for a dental disorder for VA compensation purposes have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310, 3.381, 4.150. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the Appellant, served on active duty from March 1951 to April 1956. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision from the Regional Office (RO), which, in pertinent part, denied service connection for a dental disorder and denied reopening of service connection for a left rib cage disorder. In August 2018, the Veteran testified at a Board videoconference hearing from the RO in Nashville, Tennessee, before the undersigned Veterans Law Judge in Washington, DC. The hearing transcript has been associated with the record. The Board finds that the duties to notify and assist the appellant in this case have been fulfilled. Neither the appellant nor the evidence has raised any specific contentions regarding the duties to notify or assist. Service Connection 1. Whether to Reopen Service Connection for a Left Rib Cage Disorder The representative contends that an x-ray of the left rib received since the January 2012 rating decision is relevant to the initial source of the injury and could be used to establish a nexus to service. See August 2018 Board hearing transcript. Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. § 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. “[N]ew evidence” means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial. 38 C.F.R. § 3.156(a). Materiality has two components, first, that the new evidence pertains to the reason(s) for the prior final denial, and second, that the new evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When making a determination whether the submitted evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim, applying concepts derived from the duty to assist. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Id. at 117-118. Regardless of the RO’s determination as to whether new and material evidence had been received, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board’s jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus v. Principi, 3 Vet. App. 510, 512 (1992). Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened. Once the case is reopened, the presumption as to the credibility no longer applies. Id at 513. In this case, a January 2012 rating decision denied service connection for a left rib cage disorder on the grounds that the evidence did not show that a left rib disability or injury occurred during service or was caused by service. In January 2012, the Veteran was notified of the rating decision and provided notice of procedural and appellate rights. The Veteran did not submit a timely NOD following the January 2012 rating decision, and no new and material evidence was received during the one-year appeal period following the decision. As such, the January 2012 rating decision became final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a), (b), 20.302, 20.1103. After reviewing the evidence received since the January 2012 rating decision, the Board finds that the evidence does not qualify as new and material evidence, so is not sufficient to reopen service connection for a left rib cage disorder. Recent lay statements from the Veteran reflect that the Veteran injured the left rib cage due to a motor vehicle accident during service. See August 2018 Board hearing transcript. These statements are not new evidence because the substance of such statements was previously asserted and considered during the prior appeal period, and considered when service connection was denied in the final January 2012 rating decision. The service treatment records, which were previously considered, reflect that the Veteran was involved in a motor vehicle accident in June 1954; however, no injury to the ribs or treatment for a left rib disorder is evidenced. Additionally, the military physician assessed no significant medical history during the April 1956 service separation examination. See June 1954, April 1956 service treatment records. VA treatment records show competent evidence of a post-service left rib injury, but provide no evidence of a rib injury during service. An October 2009 treatment record reflects that the Veteran denied a history of bone pain other than chronic degenerative disease of the knee. November 2009 and April 2010 imaging of the ribs showed a small sclerotic focus (increased bone density) in the right ninth rib, but no evidence of healing fracture or other fracture on the right or left ribs. A May 2012 treatment record shows complaints of left flank pain following a fall two days prior with x-ray findings of a possible left rib fracture. See October 2009, November 2009, April 2010 VA treatment records. Such evidence is not material as it only tends to show a post-service injury and the current state of a left rib disorder subsequent to that post-service injury. The additional evidence does not tend to show an in-service disease or injury to the left rib. For these reasons, the Board finds that the additional evidence received since the January 2012 rating decision is not new and material evidence; therefore, service connection for the previously denied left rib cage disorder cannot be reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. Service Connection for Dental Disorder The Veteran contends that service connection for a dental disorder is warranted. Specifically, the Veteran contends that he was involved in a motor vehicle accident during service, which resulted in a broken jaw and loss of multiple teeth. The Veteran contends he required multiple operations after the dental trauma that involved removal of parts of the splintered jaw bone and teeth and replacement with dentures. The Veteran contends that the current dentures are not helpful due to an underlying jaw bone issue. See May 2018 Board hearing transcript. Under the relevant 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; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (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 in or aggravated by service. Compensation is only available for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla. Compensation is available for loss of teeth only if such is due to loss of substance of body of maxilla or mandible due to trauma or disease such as osteomyelitis, but not periodontal disease. 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 purpose 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. After reviewing all the evidence, both medical and lay, the Board finds that the weight of the evidence is against a finding that the Veteran has a dental disability subject to compensation. 38 C.F.R. § 17.161. That is, there is no diagnosis of record, nor has the Veteran submitted evidence of a diagnosis of 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, for which service-connected compensation could be granted. See 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. The service treatment records show that the Veteran entered service with no missing teeth. The Veteran was admitted to the hospital at Fort Benning following a motor vehicle accident in June 1954. The Veteran was treated for laceration to the buccal cavity lips and missing teeth, which did not include involvement of the edentulous mandible or maxilla. See June 1954 service treatment record. The April 1956 service separation examination report reflects that tooth number five, eight, 12, 13, 18, 19, and 23-30 were missing, and replaced with upper and lower dentures. Although the record suggests that there was some trauma to tooth number five, eight, 12, 13, 18, 19, and 23-30 during service that caused loss of these teeth, the evidence of record does not show that any claimed teeth or gum disability are due to the loss of substance of the body of maxilla, mandible, or hard palate during service through trauma or disease such as osteomyelitis. The record specifically indicates that the missing teeth were replaced by some form of prosthesis during service. Periodontal disease will be considered service connected solely for the purpose of establishing eligibility for outpatient dental treatment as provided in 38 C.F.R. § 17.161. See 38 C.F.R. § 3.381(a). Although the Veteran contends that he was told his dentures do not fit properly due to a jaw fracture during service, service treatment records do not evidence diagnosis of treatment for a fractures jaw during service and the Veteran has not submitted any competent medical evidence of nexus between a current dental disability, to include missing teeth, and a fractured jaw due to motor vehicle accident during service. Moreover, the post-service treatment records also reflect no symptoms, diagnosis, or treatment for any current dental condition. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; see also Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the veteran currently has a compensable dental or oral disability for which benefits are being claimed. Because the evidence does not establish that the Veteran has a current compensable dental condition during the pendency of the appeal, the Board finds that the Veteran is not entitled to service connection for a compensable dental disorder under 38 C.F.R. § 4.150. To the extent to which the Veteran seeks service connection solely for outpatient dental treatment, such issue is referred to the RO for appropriate action.   As the Veteran has not been diagnosed with, nor asserts he has, a dental disability for which service connection may be granted, the claim for service connection for a dental disorder for compensation purposes must be denied. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Moore, Associate Counsel