Citation Nr: 1808516	
Decision Date: 02/09/18    Archive Date: 02/20/18

DOCKET NO.  09-43 085	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for a dental disorder for treatment purposes.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

C. Bosely, Counsel


INTRODUCTION

The Veteran served on active duty from November 1969 to November 1971, and from October 1979 to July 1991.  

This matter originally came before the Board of Veterans' Appeals (the Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 

At present, the regulations provide for the Veterans Health Administration (VHA) to adjudicate claims of service connection for dental treatment purposes.  See 38 C.F.R. § 3.381(a) (2017).  However, the instant claim was filed in May 2007, which was before the regulation was amended effective in February 2012.  See 77 Fed. Reg. 4470 (Jan. 30, 2012).  Prior to the amendment, the regulation did not provide for VHA to maintain original jurisdiction of these claims.  See 38 C.F.R. § 3.381(a) (2007).  Accordingly, jurisdiction of the appeal remains with the RO.  

In his May 2007 claim, the Veteran raised the issue of service connection for dental treatment purposes only.  The issue of service connection for compensation purposes has not been raised.  See Mays v. Brown, 5 Vet. App. 302 (1993); VBA Manual M21-1, IX.ii.2.2.a, Interpreting Claims Raising Dental Issues.  

In April 2011, the Veteran provided testimony at a hearing at a Travel Board hearing before a Veterans Law Judge (VLJ).  

In October 2017, the Board sent the Veteran a letter informing him that the VLJ who conducted the April 2011 Board hearing had become unavailable to issue a final decision in his appeal, and, as a result, that he had the right to an additional hearing before another VLJ, who would issue the final decision in his appeal.  In December 2017, the Board received a response from the Veteran in which he stated that he did not wish to appear at another Board hearing.  See 38 C.F.R. § 20.707.



FINDING OF FACT

The Veteran does not have a dental condition aggravating a service-connected disability, such as his hiatal hernia, gastroesophageal reflux.  


CONCLUSION OF LAW

The criteria to establish service connection for VA dental treatment purposes have not been met.  38 U.S.C. §§ 1110, 1131, 1712 (West 2002); 38 C.F.R. §§ 3.1, 3.301, 3.303, 3.381, 4.150, 17.161 (2007). 


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran is seeking service connection for dental treatment.  He maintains that his dental condition is secondary to his service-connected hiatal hernia, gastroesophageal reflux (herein after "GERD").  Throughout various supporting statements, including in April 2011 and May 2008, he specifically asserted this secondary theory of entitlement.  He has not indicated that a dental condition aggravated a service-connected disability.  

The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).

A.  Applicable Law

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  "To establish a right to compensation for a present disability, a veteran must show: "(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 or aggravated during service"-the so-called "nexus" requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 

Under current VA regulations, service-connected 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, and loss of a portion of the maxilla.  See 38 C.F.R. § 4.150.  Compensation is available for loss of teeth if such is due to loss of substance of body of maxilla or mandible, only if such bone loss is due to trauma or osteomyelitis, and not to the loss of the aveolar process as a result of periodontal disease, as such loss is not considered disabling.  Id. at Note.  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.  38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150; Simington v. West, 11 Vet. App. 41 (1998). 

For the purpose of entitlement to VA outpatient dental treatment, various categories of eligibility exist, which consist of veterans having a compensable service-connected dental condition (Class I eligibility); one-time treatment for veterans having a noncompensable service-connected dental condition (Class II eligibility); those having a noncompensable service-connected dental condition adjudicated as resulting from a combat wound or other service trauma (Class II(a) eligibility); those who were detained as a POW (Class II(b) and Class II(c) eligibility); those who made prior applications for, and received, dental treatment from VA for noncompensable dental conditions but were denied replacement of missing teeth that were lost during any period of service prior to his or her last period of service (Class IIR (Retroactive) eligibility); those having a dental condition professionally determined to be aggravating disability from an associated service-connected condition or disability (Class III eligibility); those whose service-connected disabilities are rated at 100 percent by schedular evaluation or who are entitled to the 100 percent rating by reason of individual unemployability (Class IV eligibility); those who participate in a rehabilitation program under 38 U.S.C. Chapter 31 (Class V eligibility) and those who are scheduled for admission or who are otherwise receiving care and services under Chapter 17 of 38 U.S.C., where dental care is medically necessary (Class VI eligibility).  38 U.S.C. § 1712; 38 C.F.R. § 17.161. 

Those having a service-connected noncompensable dental condition or disability shown to have been in existence at time of discharge or release from active service, which took place before October 1, 1981, may be authorized any treatment indicated as reasonably necessary for the one-time correction of the service-connected noncompensable condition, but only if: (A) They were discharged or released, under conditions other than dishonorable, from a period of active military, naval, or air service of not less than 180 days. (B) Application for treatment is made within one year after such discharge or release.  (C) Department of Veterans Affairs dental examination is completed within 14 months after discharge or release, unless delayed through no fault of the veteran.  38 C.F.R. § 17.161(2)(i). 

The VA regulations concerning dental claims were amended during the pendency of this appeal effective from February 29, 2012.  The amendment clarified existing regulatory provisions and reflected the respective responsibilities of VHA and VBA in determinations concerning eligibility for dental treatment.  76 Fed. Reg. 14600 (Mar. 17, 2011) (proposed).  Relevant to this appeal, the regulations were not amended in any material respect.  Although neither version is more favorable, the Board has set forth the regulations as written prior to when the amendments went into effect.  See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991), to the extent it held that, where a law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version more favorable to appellant should apply). 

B.  Discussion
  
In this case, service connection for dental treatment is denied.  

As a threshold matter, there is no material dispute that the Veteran is not eligible for dental treatment under Classes I, II, IV, V, or VI.  Under Class I, he does not have a service-connected dental disability.  Under Class II, he had a dental condition existing at service separation, but was provided treatment prior to discharge (as indicated by an undated certificate in his service treatment records (STRs)) and then by VA from January 2001 to May 2004.  Under Class II(a), he does not have a dental condition from combat wounds or service trauma.  Under Classes II(b) and II(c), he was not a prisoner of war.  Under Class II(R), he was not denied replacement of missing teeth with application made within one year of April 5, 1983.  Under Class IV, he does not have service-connected disabilities rated at 100 percent.  Under Class V, he has not participated in VA's Vocational Rehabilitation program.  Under Class VI, he was not scheduled for admission or otherwise receiving care and services under chapter 17 of 38 U.S.C.  See 38 C.F.R. § 17.161.  

Thus, his claim falls under Class III for those having a dental condition which, in sound professional judgment, is having a direct and material detrimental effect upon the associated basic service-connected condition or disability.  

There is some question in this case as to whether the Veteran has a dental condition, particularly periodontitis, secondary to his GERD.  Multiple private and VA treatment providers have indicated a positive relationship.  For instance, a VA primary care provider in January 2004 stated that the Veteran likely had dental issues as a result of uncontrolled GERD.  A private dentist in December 2007 gave a similar assessment.  A VA examiner in January 2008 also indicated that damage to the Veteran's death was as likely as not secondary to acid reflux.  The Veteran also submitted numerous medical articles indicating that GERD can result in dental complications, especially dental erosion.  Yet, VA examiners in April 2012 and June 2015 gave negative opinions indicating that the Veteran's dental condition was not secondary to GERD.  

Ultimately, this conflict is not material to the outcome of the appeal.  The material issue of fact at issue in this case is not whether the Veteran's dental problems are secondary to his service-connected GERD.  Rather, in order to be entitled to dental treatment, a dental disorder must be aggravating his service-connected GERD (or another service-connected disability).

On this question, a VA examiner in August 2015 reviewed the Veteran's case and opined that this secondary relationship was less likely than not.  The examiner explained that "I do not know of any connection that Periodontitis has on any of the listed service connected conditions.  I am a Dipplomare [sic] of the American Board of Periodontology, and have never seen any of those conditions listed in the refereed [sic] scientific litarature [sic] as comorbities of Periodontal Diseases."  

This opinion shows that the examiner correctly considered whether a dental condition was aggravated by a service-connected disability, including GERD.  The examiner's opinion and underlying rationale, while not a model of clarity, are persuasive and understandable when reading the examination report as a whole.  See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012).  To this extent, the examiner is presumed competent and up-to-date on the medical knowledge and current medical studies in this area.  The VA examiner's failure to expressly cite any pertinent studies does not rebut the presumption of competence.  See Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2009); Monzingo, 26 Vet. App. at 107 (discussing the general presumption of competence afforded to physicians and concluding that the examiner's failure to "explicitly cite any studies is not evidence that she was unaware of such studies, and is not a basis for finding the examination report inadequate").  Accordingly, the examiner's opinion is highly probative evidence on this question.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  

It is important to note that the Veteran was previously treated by VA as a Class III patient.  The Dental Clinic's records from January 2001 to March 2004 show treatment under Class III.  This might indicate that the Veteran was professionally determined to have a dental condition aggravating a service-connected disability.  If this was determined by the Dental Clinic at some point, the determination is not recorded in the VA dental records.  This is problematic because the Board cannot determine whether there was actually a dentist's determination or whether this treatment was allowed through administrative error.  Even if it was a dentist's determination, the dentist's opinion and rationale are not sufficiently identified to probatively establish that a dental condition was, indeed, aggravating a service-connected disability.  Rather, such a determination can only be inferred; there is no basis to understand the underlying rationale.  See Nieves-Rodriguez, 22 Vet. App. at 304; Horn v. Shinseki, 25 Vet. App. 231, 240 (2012) (an unexplained conclusory opinion is entitled to no weight in a service-connection context.).  In fact, his dental treatment was stopped in March 2004, which was prior to the present claim.  Again here, the reason is not clearly stated in the dental records, but it appears that he was found not eligible as a Class III patient (it states that he would try to get his eligibility "upgraded" to Class IV).  

Accordingly, the VA examiner's August 2015 opinion remains the most probative evidence of record.  As it establishes that a dental condition has not aggravated a service-connected disability, the preponderance of the evidence is against the claim.  Therefore, the benefit-of-the-doubt doctrine is not applicable, and the claim of service connection for dental treatment is denied.  See 38 U.S.C. § 5107(b) 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).


ORDER

Service connection for a dental disorder for treatment purposes is denied.  




____________________________________________
RYAN T. KESSEL 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs