Citation Nr: 1807588	
Decision Date: 02/06/18    Archive Date: 02/14/18

DOCKET NO.  14-03 750	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to service connection for dental trauma for VA compensation purposes.

2.  Entitlement to service connection for dental trauma for the purpose of VA outpatient dental treatment.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

B. Berry, Counsel



INTRODUCTION

The Veteran served on active duty from July 1980 to July 2000.

This appeal to the Board of Veterans' Appeals (Board) comes from a rating decision dated in May 2013 by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.

Regarding characterization of the claims on appeal, a claim for service connection for a compensable dental disorder is also considered to be a claim for VA outpatient dental treatment.  See Mays v. Brown, 5 Vet. App. 302, 306 (1993).  Furthermore, the Veteran was clear in his statements to the RO that he was seeking service connection for dental trauma for the purpose of VA outpatient dental treatment.  Pursuant to Veterans Benefits Administration (VBA) Fast Letter 12-18 (July 10, 2012), claims for outpatient dental treatment submitted to VBA should be referred to the Veterans Health Administration (VHA) for preparation of a dental treatment rating.  See also 38 C.F.R. § 3.381 (2017).  The Board notes that all Fast Letters have been rescinded and summaries of them incorporated into VA's Adjudication Manual.  As there is no indication that the claim for VA outpatient dental treatment has been considered by VHA, the Board has bifurcated the dental claim into separate claims for compensation and treatment, as reflected on the title page.

The issue of entitlement to service connection for dental trauma for the purpose of VA outpatient dental treatment is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The preponderance of the evidence shows that the Veteran did not receive any dental trauma to include loss of teeth due to loss of substance of the body of the maxilla or mandible during active military service. 


CONCLUSION OF LAW

The criteria for service connection for a dental disorder for VA compensation purposes are not met. 38 U.S.C. §§ 1110, 1712, 5107 (2012); 38 C.F.R. §§ 3.303, 3.381, 4.150, 17.161 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Notice and Assistance

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C. § 5103(a)(2012); 38 C.F.R. § 3.159(b) (2017).  In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case).  See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).  

Regarding the issue of service connection for dental trauma for the purpose of VA compensation, a February 2013 letter satisfied VA's duty to notify.  In this regard, the letter advised the Veteran what information and evidence was needed to substantiate his service connection claim for a dental disorder.  The letter also notified the Veteran of how VA determines a disability rating and an effective date if his claim is granted.  The Veteran was informed of his and VA's respective duties for obtaining evidence.  The letter requested that he provide enough information for the RO to request records from any sources of information and evidence identified by the Veteran.  

VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c).  This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1).  VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim.  38 C.F.R. § 3.159(c)(4).

In this case, VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's service connection claim for a dental disorder for VA compensation purposes.  The claims file contains the Veteran's service treatment records, VA treatment records, and lay statements from the Veteran.

The Board acknowledges that the Veteran was not provided with a VA examination in conjunction with his service connection claim for dental trauma for VA compensation purposes; however, an examination is not warranted, because there is sufficient evidence to decide the claim.  See 38 C.F.R. § 3.159(c)(4). VA has a duty to provide a VA examination when the record lacks evidence to decide the veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease.  Id.; see McLendon v. Nicholson, 20 Vet. App. 79 (2006).  As will be discussed further below, the Veteran does not contend and the evidence does not show, that he has dental trauma to tooth number 8 due to loss of substance of the body of the maxilla or mandible during active military service.  Accordingly, VA is not required to provide the Veteran with a VA examination in conjunction with his dental claim.

Furthermore, there is no indication in the file that there are additional relevant records available that have not yet been obtained.  Therefore, the Board finds that all relevant facts have been developed properly and sufficiently in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim.

II.  Criteria and Analysis for Service Connection for a Dental Disorder 
for VA Compensation Purposes

The Veteran contends that he injured his front tooth in the line of duty while stated at Pearl Harbor, Marine Barracks, Hawaii and therefore, he is entitled to VA outpatient treatment.  See August 2013 notice of disagreement.  He asserts that his service dental records provide medical evidence that support his contentions.

Service connection for compensation purposes can only be established for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150 (2017), 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 due to loss of substance of the body of the maxilla or mandible.  38 C.F.R. § 4.150, Diagnostic Code 9913; see Simmington v. West, 11 Vet. App. 41 (1998).  For loss of teeth, bone loss through trauma or disease such as to osteomyelitis must be shown for purposes of compensability.  The loss of the alveolar process as a result of periodontal disease is not considered disabling.  38 C.F.R. § 4.150, Diagnostic Code 9913, Note (2017).

It should be noted that for the purposes of determining whether a veteran has treatment eligibility, the term "service trauma" does not include the intended effects of treatment provided during the Veteran's military service.  The regulations are intended to cover dental trauma involving external, sudden-force injury, such as a combat wound to the teeth and jaw.  VAOPGCPREC 5-97 (1997); see also Nielson v. Shinseki, 607 F.3d. 802 (Fed. Cir. 2010).

The Veteran's service dental records document that the Veteran fractured off unusual 4mm of the crown on tooth number 8 with pupal exposure.  It was treated with a pulpectomy and a temporary acrylic crown was placed on tooth number 8.  A porcelain fused metal crown replaced the temporary acrylic crown in April 1983.  
The Board notes that the Veteran has asserted that he has experienced dental trauma due to fracture of tooth number 8.  In this case, the Veteran does not contend and the evidence does not show loss of tooth due to bone loss due to trauma.  The Veteran's service dental records clearly document that there was a fracture to the crown of tooth number 8.  The crown of a tooth is defined under "corona, dental" a  "the upper part of the tooth, which joins the lower part of the root, at the cervix at the cementoenamel junction, and terminates as the grinding surface of molar or premolar teeth or the cutting edges of incisors."  Dorland's Illustrated Medical Dictionary 420 (30th ed. 2003).  Thus, the competent evidence of record shows that trauma to tooth number 8 was not due to bone loss through trauma or disease such as to osteomyelitis or as a result of loss of the substance of the body of the maxilla or mandible during active military service.  Accordingly, entitlement to service connection for compensation purposes is not warranted.  See 38 C.F.R. § 4.150.

The Board notes that periodontal disease, and any dental disorders related to such disease, is not considered disabling.  38 C.F.R. § 4.150, Diagnostic Code 9913, Note (2017).  VA regulations provide that certain common dental conditions, including periodontal disease, can be service connected only to establish eligibility for outpatient dental care, not to receive disability compensation.  38 C.F.R. § 3.381(a) (2016).  

Based on the foregoing, the Board finds that the preponderance of the evidence shows that the Veteran did not experience loss of teeth due to loss of substance of the maxilla or mandible due to any in-service dental trauma or disease.  Periodontal disease is not considered disabling for compensation purposes.  Thus, service connection may not be established for compensation purposes for the claimed dental trauma under 38 C.F.R. § 4.150.


ORDER

Entitlement to service connection for dental trauma for VA compensation purposes is denied.  

REMAND

After review of the electronic claims file, the Board has determined that a remand is necessary with respect to the remaining issue on appeal. 

In this regard, the Veteran contends that he experienced dental trauma due to fracture of tooth number 8 during active military service.  He explained that he injured his front tooth in the line of duty while stationed at Pearl Harbor, Hawaii and therefore, he is entitled to VA outpatient treatment. See August 2013 notice of disagreement.  

As noted in the introduction above, the Board has recharacterized the dental issue on appeal to include a claim of entitlement to service connection for a dental condition for purposes of dental treatment.

Effective February 29, 2012, the regulations provide that the Veterans Benefits Administration (VBA) will adjudicate a claim for service connection of a dental condition for dental treatment purposes after the Veterans Health Administration (VHA) has made a determination regarding basic eligibility under the requirements of 38 C.F.R. § 17.161.  38 C.F.R. § 3.381(a) (2017).

At this point, the electronic claims file does not contain any determination by VHA regarding the Veteran's eligibility for dental treatment.  Therefore, the Board finds that a remand is necessary so that the VHA may adjudicate the issue of entitlement to service connection for dental treatment purposes in the first instance.

Accordingly, the claim remaining on appeal is REMANDED for the following action:
      
1. After obtaining any additional evidence pertinent to the claim as well as developing the claim in any matter deemed appropriate, refer the Veteran's claim of entitlement to service connection for dental trauma to tooth number 8 for dental treatment purposes to VHA for adjudication of Class eligibility in the first instance under 38 C.F.R. § 3.381 (effective February 29, 2012).  See 38 C.F.R. § 17.161.

2. Upon completion of the foregoing and any other development deemed necessary, if the benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and the opportunity to respond thereto.  Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, if in order. 

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).




____________________________________________
Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs