Citation Nr: 18159481 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 16-23 685 DATE: December 19, 2018 ORDER Entitlement to service connection for periodontal disease is denied. New and material evidence having not been received, the petition to reopen the claim of entitlement to service connection for a stomach ulcer is denied. REFERRED The Board notes that, in general, a claim of service connection for a dental disorder may also be treated as a claim for VA outpatient dental treatment. Mays v. Brown, 5 Vet. App. 302, 306 (1993). In dental claims, the Regional Office (RO) adjudicates the claim of service connection for compensation benefits and the corresponding VA Medical Center (VAMC) adjudicates the claim for outpatient treatment. As the Veteran’s claim for a dental disability stems from an adverse determination on the issue of service connection for a dental disability for the purpose of compensation by the RO, the appeal is limited to that issue. The claim of entitlement to service connection for a dental disorder for the purpose of obtaining VA outpatient dental treatment is therefore referred to the Agency of Original Jurisdiction (AOJ), for additional referral to the appropriate VAMC. FINDINGS OF FACT 1. The Veteran does not have a dental disability for which service connection may be granted for compensation purposes. 2. An August 1983 Board decision denied the Veteran’s claim of entitlement to service connection for a stomach ulcer. 3. Evidence added to the record since the August 1983 Board decision is cumulative or redundant of the evidence of record at the time of the prior decision and does not raise a reasonable possibility of substantiating the claim of service connection for a stomach ulcer. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a dental disorder for compensation purposes are not met. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 17.161; VAOGCPREC 5-97. 2. The August 1983 Board decision denying service connection for a stomach ulcer is final. 38 U.S.C. § 7104(b); 38 C.F.R. § 20.1100. 3. The Veteran has not submitted new and material evidence to reopen the previously denied claim of entitlement to service connection for a stomach ulcer. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from July 1955 to October 1957. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) RO. The Veteran was scheduled for a Board hearing, but he withdrew his hearing request in a December 2018 statement. 38 C.F.R. § 20.704(e). 1. Entitlement to service connection for a dental disorder is denied. The Veteran seeks compensation for a dental disorder, claimed generally as loss of teeth requiring dentures. Disability compensation and VA outpatient dental treatment may be provided for certain specified types of service-connected dental disorders. For other types of service-connected dental disorders, the claimant may receive treatment only and not compensation. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150, 17.161. Dental disabilities that may be awarded compensable disability ratings are set forth 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, limited temporomandibular motion, loss of the ramus, loss of the condyloid or coronoid processes, loss of the hard palate, 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. In this case, there is no competent medical or dental evidence of loss of teeth due to loss of substance of the body of the maxilla or mandible due to bone loss through trauma or any other condition on which service connection could be allowed. While service dental records demonstrate dental caries and missing teeth, with tooth #8 being replaced by a partial denture in January 1957, there is no evidence of any dental trauma or injury in service. Furthermore, the Veteran has never at any time during the course of the appeal alleged incurring an injury or trauma to the mandible or maxilla. In other words, none of the Diagnostic Codes, 9900 through 9916, apply in this case. The Board notes that service connection for replaceable missing teeth and periodontal disease for compensation purposes is not legally permitted, and as a matter of law this claim must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a stomach ulcer is denied. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). 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. Id. 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. Id. With regard to the finality of the prior VA decision, the Board has also considered the applicability of 38 C.F.R. § 3.156(c), as the Veteran’s service personnel records were received in January 2015. While such records describe the nature of the Veteran’s service, to include information pertaining to his overseas service; record of performance; record of assignments and duties; and education and training, they do not specifically address a gastrointestinal disorder, and do not include any reference to any in-service event, injury, or disease referable to the instant claim. Therefore, 38 C.F.R. § 3.156(c) is inapplicable, and new and material evidence is required to reopen the Veteran’s previously denied claim. The Board notes that the Veteran’s service treatment records were already of record at the time of the prior final Board decision. Specifically, in an August 1983 decision, the Board denied the Veteran’s claim for service connection for a stomach ulcer based on lack of evidence relating his ulcer presumptively or directly to active duty. The Veteran did not request reconsideration of the Board decision. Notably, the Court of Appeals for Veterans Claims (Court) was not established until November 18, 1988, and its jurisdiction was limited to those appellants who had filed notices of disagreements at VA on or after November 18, 1988. Therefore, the right to appeal to the Court did not exist at the time of the August 1983 Board decision, and it is final. 38 U.S.C. § 7104(b); 38 C.F.R. § 20.1100. Additionally, in December 2005, the Veteran requested to reopen his ulcer claim. In January 2006, the RO issued the Veteran a letter advising that he must submit new and material evidence to reopen his claim. At the time of the Board’s denial in August 1983, the evidence consisted of the Veteran’s service treatment records, to include his October 1957 separation examination describing his abdomen and viscera as normal; an October 1982 Board hearing transcript; multiple lay statements regarding in-service complaints of stomach symptoms; a November 1974 statement from the Veteran’s former employer, G.K., noting a stomach ulcer diagnosis in 1959 (the Veteran corrected the date to 1958); and post-service treatment records, including a January 1974 hospitalization for a gastric ulcer with a reported history of gastric surgery for a duodenal ulcer in June 1973. In its conclusion, the Board found that the Veteran’s ulcer did not have its onset in service or was otherwise related to service or manifested to a compensable degree within one year of separation from service. The RO received the instant petition to reopen the claim in June 2014. The evidence received since the August 1983 Board denial includes the Veteran’s written statements of having recurrent gastrointestinal symptoms in-service and since service, VA and private treatment records showing a post-service history of and treatment for digestive complaints and a peptic ulcer from 1986 to the present, and resubmitted lay statements (dated November 1974, October 1982, and January 1983). Additionally, in April 2017, the RO attempted to obtain the Veteran’s Social Security Administration (SSA) records. In December 2017, the Veteran was notified that his SSA were unavailable for review. Evidence received since the August 1983 Board decision does not constitute new and material evidence. While the VA and private medical records are new and show that the Veteran has a peptic ulcer, the presence of current disability has already been established. Therefore, while new, the evidence is not material. Further, these records do not contain any evidence that addresses whether the Veteran’s peptic ulcer had its onset in service, within one year of service discharge, or is related to service. The Veteran’s statements and the above-noted lay statements asserting that the Veteran has had recurrent gastrointestinal symptoms since service were previously of record and considered at the time of the prior denial. Therefore, that evidence is redundant and is not new and material evidence. In sum, the record still does not contain competent medical evidence linking the Veteran’s current peptic ulcer to service. The Board thus finds that the new evidence does not help to establish that the Veteran’s peptic ulcer had its onset in service or is causally related to service. Therefore, the new evidence, even when presumed credible for the purpose of determining whether it is material, does not create a reasonable possibility of substantiating the claim or trigger VA’s duty to assist by obtaining a medical opinion or examination; and therefore, the new evidence is not material and the claim is not reopened because new and material evidence has not been submitted. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Forde, Counsel