Citation Nr: 1815107	
Decision Date: 03/09/18    Archive Date: 03/19/18

DOCKET NO.  09-41 033	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to service connection for a dental disability for compensation purposes. 


REPRESENTATION

Veteran represented by:	AMVETS


WITNESS AT HEARING ON APPEAL

The Veteran 


ATTORNEY FOR THE BOARD

S. Kim, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1968 to June 1972. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. 

In August 2013, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is of record.  

In January 2014, the Board remanded the claim for additional development.  

With regard to the present service connection claim for a dental disability, in September 1972, the Veteran initially filed a service connection claim for a dental disability, then claimed as "dental trouble."  As the RO did not issue a decision addressing the issue until the issuance of the May 2008 rating decision, the Veteran's September 1972 claim for a dental disability remains pending.  See 38 C.F.R. § 3.156(b) (2017). 

As noted in the January 2014 Board remand, the issue of entitlement to service connection for a dental disability for treatment purposes only has been raised by the record, but has not been adjudicated by the RO.  Therefore, the Board does not have jurisdiction over it, and it is REFERRED to the RO for appropriate action.  The RO should refer the claim for dental treatment to the appropriate VA Medical Center.   


FINDING OF FACT

The Veteran does not have dental condition for which compensation may be granted. 


CONCLUSION OF LAW

The criteria for service connection for a dental disability for compensation purposes are not met. 38 U.S.C. §§ 1110, 1721, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.381, 4.150 (2017). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  VA's Duties to Notify and Assist

With respect to the Veteran's claim decided herein, no notice or duty to assist deficiencies have been alleged by the Veteran.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

II.  Pertinent Law and Regulations

Service connection will be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty.  38 U.S.C. § 1131; 38 C.F.R. § 3.303.  Service connection may be granted for a disability first diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service.  38 C.F.R. § 3.303(d). 

Service connection requires evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

Service connection for a dental disability for compensation purposes can be established only for the specific 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.  See Simmington v. West, 11 Vet. App. 41 (1998).  For loss of teeth, bone loss through trauma or disease such as due 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.  See Diagnostic Code 9913, Note, 38 C.F.R. § 4.150.

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).


III.  Analysis

The Veteran maintains that he has loss of teeth due to an in-service trauma.  Specifically, he argues that since being struck by a lightening during service, he had a syncopal episode when he "got into the shower and . . . fell" while on active duty.  August 2013 Hearing Tr. at 5.  He reports that the injury "destroyed the front three teeth."  See  id.  He has also reported that "three months [after the injury] . . . they . . .  did root canals [on his damaged teeth]" and that since separation from service, the damaged teeth were "taken out and a bridge was put in [in their place]."  See id. at 8; see also October 2007 Statement from the Veteran. 

An August 1968 enlistment examination report contains normal findings as to the Veteran's teeth.  An October 1968 examination report notes that tooth #16 was missing at that time.  A January 9, 1970 service treatment record reflects that the Veteran was admitted "following fainting in the shower this [morning]."  The treating physician observed that there was no fracture to the facial bones or cranial nerves and that maxillary anterior teeth #8, 9, and 10 were "displaced . . . and supra erupted [with] fx (fracture) of clinical crown [on] #10."  The treating physician also noted that there was mucosal laceration over the maxillary buccal of the teeth #8 and 9.  Assessments of subluxated maxillary anterior teeth, mucosal laceration to maxillary buccal, lip laceration, and facial abrasion were provided at the time.  Subsequent service dental treatment records note that on March 5, 1970, vitalometer test on teeth #7, 8, and 9 yielded findings of nonvital teeth.  On March 23, 1970, the Veteran underwent an apicoectomy (resection at root of apex) for teeth #7, 8, and 9 to address periapical abscess on those teeth.  On February 5, 1972, teeth #7, 8, and 9 were "opened [and] bleached w/sodium perborate."  A May 1972 separation examination report documents that the Veteran's dental defects or diseases were qualified as "Class 1."  

Post-service private dental treatment records dated from July through December 1983 documents that the Veteran's teeth #7, 8, and 9 were treated with splints and temporary crowns.  

In a January 2008 letter, Dr. J.D.D. wrote that he had known the Veteran "since the late 1960's" and that he was "aware of [the Veteran] . . . blacking out in the shower in January 1970."  Dr. J.D.D. then described that he advised the Veteran to "whiten [the damaged teeth after the January 1970 incident] due to discoloration due to the root canals that were done to them [during service]. . . ."  Dr. J.D.D. also noted that the Veteran "has had a history of diseased maxillary anterior teeth since his fall in January of 1970."  

A June 2015 private dental treatment record from Dr. R.W.B. indicates that the Veteran's upper right teeth were examined at that time and that he "stated that gum felt better."  

In January 2017, the Veteran underwent a dental Disability Benefits Questionnaire (DBQ) examination for the claimed missing teeth.  Upon inspection, the examiner observed missing teeth at #7, 8, 9, 10, 11, 16, 17, 18, and 25 as well as existing bridge abutments ending at tooth #6 and #12 to replace the missing teeth #7, 8, 9, 10, and 11.  The examiner also observed "generalized moderate chronic periodontitis with severe localized periodontitis in the #3 area" as well as "localized areas of alveolar bone loss associated with teeth #'s 2, 3, 30."  The examiner then noted the Veteran's report that he "became dizzy . . . and collapsed in the shower causing in to break three teeth" during service and that "the teeth lasted for approximately another 35 years until they needed to be extracted."  The examiner noted that the Veteran had "a long span fixed bridge to replace the missing maxillary incisor teeth along with tooth #11."  In the accompanying medical opinion, the examiner found that, while "the eventual loss of teeth #'s 8, 9 and 10 were due to the original traumatic experience of falling in the shower when [the Veteran] was in the military," the Veteran "does not have loss of substance of body of maxilla or mandible" based on dental examination and added that "[t]he answer . . . [was] unequivocal" in that regard.  
 
Based on the foregoing, service connection for a dental disability for compensation purposes is not warranted as there is no indication that the Veteran has or has had a current dental disability for VA compensation purposes under 38 C.F.R. § 4.150 at any time during the appeal period.  In this regard, the Board observes that compensation is available for loss of teeth only if due to loss of substance of the body of the maxilla or mandible.  See Simmington, 11 Vet. App. at 41.  Moreover, replaceable missing teeth are not compensable disabilities.  38 C.F.R. § 3.381(b).  While the January 2008 letter from Dr. J.D.D. references the Veteran's history of  ". . . diseased maxillary anterior teeth," the January 2017 DBQ examiner emphasized that the Veteran's claimed dental condition did not involve loss of teeth due to loss of substance of body of maxilla or mandible.  Further, the January 2017 DBQ examiner inspected that the Veteran had "a long span fixed bridge to replace the missing maxillary incisor teeth," indicative of replaceable missing teeth, which are not compensable disabilities as noted above.  Therefore, as the probative evidence is against a finding that the Veteran has a dental disability for VA compensation purposes under the governing law and regulations, the "benefit of the doubt" doctrine is not applicable, and the appeal must be denied.  38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.150. 

As for lay assertions, the Board notes that while lay persons are competent to provide opinions on some medical issues, diagnoses for dental conditions are complex medical matters that fall outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  Here, as the Veteran is not shown to have the education, training or experience to competently opine as to diagnosis of dental conditions, his lay assertions in this regard have been assigned minimal probative weight, and significant probative weight has been afforded to the January 2017 DBQ examiner's findings for reasons articulated above. 

ORDER

Service connection for a dental disability for compensation purposes is denied. 



____________________________________________
MARJORIE A. AUER 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs