Citation Nr: 18151861 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-36 438 DATE: November 20, 2018 ORDER Entitlement to service connection for a dental disability for compensation purposes is denied. Entitlement to Class II(a) VA outpatient dental treatment is granted. REMANDED Entitlement to a rating greater than 20 percent for the Veteran's service connected right shoulder disability is remanded. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) due to service connected disabilities is remanded. FINDINGS OF FACT 1. The Veteran does not have a current dental disability for which service connection may be granted for compensation purposes. 2. The Veteran sustained dental trauma during his service while in the performance of his military duties, which ultimately led to tooth loss. CONCLUSIONS OF LAW 1. The criteria for service connection for a dental disability for compensation purposes have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.381, 4.150 (2017). 2. The criteria for Class II(a) eligibility for VA outpatient dental treatment have been met. 38 U.S.C. § 1712 (West 2014); 38 C.F.R. §§ 3.381, 17.161 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from November 2009 to November 2013. This matter comes before the Board of Veterans’ Appeals (Board) from the February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In July 2016, the Veteran was sent a letter from the VA stating that the Veteran could request reprocessing of his prior TBI claim and that a response was sought within one year. Subsequently, in the Veteran’s July 2016 Formal Appeal to the Board, the Veteran stated that his TBI claim was not investigated fully and discussed his claim for service connection for a TBI. The Board interprets this as a response to the July 2016 VA letter. Therefore, the issue of entitlement to service connection for a TBI was raised in a July 2016 statement and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. I. VA’s Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.159, 3.326 (2017). The Veteran has participated in the Fully Developed Claim Program (FDC), which is designed to expedite the claims process, and thus received complete VCAA notice in conjunction with his 2013 application for benefits. See VA Form 21-526EZ. The duty to notify was satisfied prior to the RO’s initial decision by way of notification provided to the appellant with his Fully Developed Claim Form (VA 21-526EZ) that informed him of his duty and the VA’s duty for obtaining evidence. The notice that accompanies the Fully Developed Claims form informed the appellant of what evidence is required to substantiate a claim for service connection and of the appellant’s and VA’s respective duties for obtaining evidence. The notice also provides information on how VA assigns disability ratings in the event that service connection is established. Thus, the notice that is part of the claim form submitted by the appellant satisfies the VCAA duty to notify. The Veteran has not identified, and the record does not otherwise indicate, any additional relevant medical records that have not been obtained and associated with his file. Additionally, a VA examination has been obtained in connection with the current claim, satisfying VA’s duty to assist with respect to obtaining a VA examination. 38 C.F.R. § 3.159(c)(4). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on his claim at this time. II. Service Connection Generally Service connection may be established for a disability due to a disease or injury that was incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, in order to prevail on the issue of service connection, the evidence must show: (1) the existence of a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the context of dental claims, the Court has specifically held that a claim for service connection for a dental disorder is also a claim for VA outpatient dental treatment under 38 C.F.R. § 3.381. Mays v. Brown, 5 Vet. App. 302 (1993). Thus, adjudication of the Veteran’s claim for service connection for compensation purposes must also include consideration of service connection for the purpose of establishing eligibility for outpatient dental treatment as set forth in 38 C.F.R. § 17.161. Disability compensation may be provided for certain specified types of service connected dental disorders. 38 C.F.R. § 4.150. For other types of dental disorders, a veteran may be entitled to service connection for the purpose of outpatient dental treatment only. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 17.161. Service connection for compensation purposes can be established only for the specific types of dental and oral conditions listed 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, loss of the maxilla, nonunion or malunion of the maxilla, limited temporomandibular motion, loss of the ramus, loss of the condyloid or coronoid processes, loss of the hard palate, and 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. For other types of dental disorders not listed under 38 C.F.R. § 4.150, a veteran may be entitled to service connection for the purpose of outpatient dental treatment only. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 17.161. Various categories of eligibility exist for VA outpatient dental treatment. 38 U.S.C. § 1712; 38 C.F.R. § 17.161. Relevant to the claim at hand, eligibility for VA outpatient dental treatment may be established for veterans who have a noncompensable service connected dental condition or disability adjudicated as resulting from combat wounds or other service trauma. 38 U.S.C. § 1712; 38 C.F.R. § 17.161 (c) (Class II(a) eligibility). Regulations governing dental claims make a fundamental distinction between “replaceable missing teeth,” see 38 C.F.R. § 3.381 (b), and teeth lost as a result of loss of substance of body of maxilla (upper jaw bone) or mandible (lower jaw bone) due to trauma or disease such as osteomyelitis, and not the loss of alveolar process as a result of periodontal disease. See 38 C.F.R. § 4.150; see also Simmington v. West, 11 Vet. App. 41, 44 (1998). Replaceable missing teeth may 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 (b). III. Analysis The Board has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the medical and lay evidence for the issue on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran contends that he has a current dental disability from an altercation he had while in the military. Specifically, the Veteran’s service treatment records note that in May 2012, the Veteran was engaged in a physical altercation in which two of his teeth were fractured. Subsequently, while in service, the teeth were fixed. In August 2013 the Veteran underwent a VA oral and dental conditions examination. The examiner stated that the Veteran has never been and currently is not diagnosed with any oral or dental condition. Regarding entitlement to service connection for compensation, the Board finds that the criteria for service connection for teeth or dental problems have not been met. See 38 C.F.R. §§ 3.303, 3.381, 4.150. Under current VA regulations, disability compensation is only available for certain types of dental and oral conditions, such as impairment of the mandible, loss of a portion of the ramus, loss of a portion of the maxilla, and loss of teeth if such is due to loss of substance of body of maxilla or mandible. 38 C.F.R. § 4.150. Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not compensable disabilities and will be considered service connected solely for the purpose of establishing eligibility for outpatient dental treatment. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150. Therefore, there is no evidence of record that demonstrates the Veteran has a dental disorder which would entitle him to service connection for compensation purposes. While the record establishes the loss of two teeth, the Board places significant weight on the August 2013 VA dental examination report which documents that the Veteran does not have any loss of substance of body of the mandible or maxilla and that the Veteran’s dental condition has resolved. Therefore, service connection for a dental disorder for compensation purposes must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Next, the Board turns to whether entitlement to service connection is warranted for a dental disorder solely for the purpose of determining eligibility for outpatient dental treatment. Replaceable missing and broken (fractured) teeth may be considered service connected solely for the purposes of determining entitlement to dental examinations or outpatient dental treatment. See Simington, 11 Vet. App. at 44. Trauma, as defined for purposes of dental treatment eligibility, connotes damage caused by the application of an external physical force during the service member’s performance of military duties. See Nielson v. Shinseki, 607 F.3d 802 (2010) (holding that “service trauma” in 38 U.S.C. § 1712 (a)(1)(C) means an injury or wound produced by an external physical force during the service member’s performance of military duties; this definition excludes the intended result of proper medical treatment and psychological stress not the result of malpractice). The record includes competent evidence that the Veteran sustained in-service trauma to his head during the performance of his military duties. Based on the foregoing, the Board finds that the Veteran meets the requirements for Class II(a) VA outpatient dental treatment. See 38 C.F.R. § 17.161 (c). Therefore, the appeal is granted to that extent only. REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Board notes that the Veteran’s June 2016 Statement of the Case cites an August 2013 VA shoulder examination. However, this examination is not in the Veteran’s claims file. Therefore, a remand is warranted for the RO to associate this examination with the claims file. Additionally, while this matter is on remand, the Veteran should undergo a new VA examination to determine the current severity of his service connected shoulder condition as his previous examination was over five years ago. Finally, the Veteran contends that his service connected shoulder disability prevents him from working. A claim for a total rating based on unemployability due to service connected disabilities (TDIU), either expressly raised by a veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran has asserted that he is totally unemployable as the result of his service connected disability. Accordingly, the Board concludes that a claim for TDIU has been raised. As the resolution of the claim for a greater rating for the Veteran’s service connected right shoulder disability might be determinative of the Veteran’s TDIU claim, the issues are inextricably intertwined, and the TDIU issue must also be remanded. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Obtain any outstanding VA treatment records and associate those documents with the Veteran’s claims file. The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate those documents with the Veteran’s claims file. 2. Associate the Veteran’s August 2013 VA shoulder examination with the Veteran’s claims file. 3. Schedule the Veteran for a VA examination to determine the current nature and severity of his service connected right shoulder disability. The examination should include all studies, tests, and evaluations deemed necessary by the examiner. The examiner should report all manifestations related to the service connected disability. All opinions provided must be thoroughly explained and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the medical professional should state and explain why an opinion cannot be provided without resort to speculation. 4. Following completion of the above, and a review of any additional evidence received, the RO should also undertake any other development it deems to be necessary, to include, if warranted, an addendum medical opinion which considers any newly received evidence. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Mountford, Associate Counsel