Citation Nr: 1817017	
Decision Date: 03/19/18    Archive Date: 03/30/18

DOCKET NO.  13-15 117	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim for service connection for a dental disability for compensation purposes, claimed as four top front teeth knocked out as the result of an injury.

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


REPRESENTATION

Appellant represented by:	Pennsylvania Department of Military and Veterans Affairs


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife

ATTORNEY FOR THE BOARD

A. Fagan, Counsel


INTRODUCTION

The Veteran served on active duty in the United States Air Force from March 1951 to March 1955.  His awards include the National Defense Service Medal and the German Occupation Medal. 

The Veteran's dental claim comes before the Board on appeal from a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent, part, denied the petition to reopen the claim because new and material evidence had not been submitted since a July 2005 rating decision which denied the dental claim for compensation purposes, and invited the Veteran to direct a claim for dental treatment to the nearest VA Medical Center.

In June 2016 the Veteran and his wife testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record.

In August 2016, the Board, in pertinent part, declined to reopen the Veteran's claim of entitlement to service connection for a dental disability for compensation purposes.  Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (court).  In October 2017, the Court issued an Order granting an October 2017 Joint Motion for Remand (JMR), which vacated and remanded the Board's August 2016 to the extent that it declined to reopen the dental claim.

Also in August 2016, the Board remanded the issue of entitlement to service connection for varicose veins for additional development, along with the issue of entitlement to service connection for hearing loss for issuance of an SOC.  As neither of those claims has been returned to the Board, they will be the subject of a later Board decision as appropriate.
As a final matter, the parties to the October 2017 JMR noted that a claim of entitlement to compensation under 38 U.S.C. § 1151 related to a snapped eye tooth on the right during VA dental treatment received was raised by the Veteran in his substantive appeal dated and received in November 2012 (and not dated and received respectively in January 2012 and February 2014 as stated in the JMR).  That matter has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Thus, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2017). 

The issue of entitlement to service connection for a dental disability for compensation purposes is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.


FINDINGS OF FACT

1.  A July 2005 rating decision denied the claim for service connection for a dental disability specifically because there was no evidence of in-service trauma; the Veteran failed to perfect his appeal of that decision.

2.  Some of the evidence of received since the July 2005 denial relates to the previously unestablished fact of in-service incurrence of dental injury.


CONCLUSION OF LAW

The July 2005 rating decision is final, and new and material evidence has been received to reopen the claim of entitlement to service connection for a dental disability for compensation purposes.  38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.1103 (2017).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

As indicated above, the Board finds that new and material evidence has been received to reopen the claim of entitlement to service connection for a dental disability for compensation purposes.   In making this determination, the Board first notes that the Veteran's claim was denied in July 2005 in part because there was no evidence of in-service dental trauma.  Although the Veteran initiated an appeal of that decision, he failed to perfect the appeal.  Therefore, it became final.  See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010).

New evidence is defined as existing evidence not previously submitted to agency decision makers.  Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

Evidence received since the July 2005 rating decision includes photographs and x-rays of the Veteran's teeth and dental bridges; additional lay statements from the Veteran, his wife, and friends T. S. and M. S.; the Veteran's and his wife's hearing testimony; and VA treatment records.  That evidence is "new," as it was not previously submitted to agency decision makers.  Moreover, as will be discussed, some of the evidence is "material."

Foremost, to the extent that the parties to the JMR have suggested that the "new" lay statements and testimony regarding the occurrence of in-service dental trauma when a machine gun struck the Veteran in the face, are also "material," the Board disagrees.  In this regard, such an account had already been provided by the Veteran at the time of the July 2005 denial, including during a May 2005 VA examination.  Thus, those "new" lay statements are merely cumulative of those already of record at the time of the July 2005 rating decision and are, therefore, not material.

Nevertheless, in January 2017, a VA Chief of Dental Services reviewed the Veteran's military dental records and found that they were consistent with the Veteran's report of in-service dental trauma resulting in loss of teeth.  As that dental opinion addresses the reason for the prior denial, it is "material."

Accordingly, as the new evidence relates to an unestablished fact that is necessary to substantiate the Veteran's claim, the Board finds that new and material evidence has been received.  As such, the claim is reopened.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Shade v. Shinseki, 24 Vet. App. 110, 118 (2010).

As a final matter, the Board observes that in conjunction with the January 2017 dental opinion, the Veteran was deemed eligible and is receiving VA outpatient services and dental treatment under 38 C.F.R. § 17.161.  


ORDER

New and material evidence having been received, entitlement to service connection for a dental disability for compensation purposes is reopened.


REMAND

Having reopened the Veteran's dental claim for compensation purposes, the Board finds that remand is necessary for VA examination and opinion.

While acknowledging that a VA Chief of Dental Services provided a positive opinion in January 2017, stating that "Veterans are typically granted service connection for loss of teeth for life when lost due to military trauma," the Board notes that such may be true for treatment purposes, but not for purposes of compensation.  38 U.S.C. § 1712; 38 C.F.R. §§ 3.381(b), 17.161(c).  

In this regard, in order to establish service connection for dental trauma for compensation purposes, it must be found that the Veteran has a dental condition for which service-connected compensation benefits are available as set forth under 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916.  Those conditions include loss of teeth only if such is due to loss of substance of body of maxilla or mandible.  Moreover, for loss of the teeth, bone loss through trauma or disease, such as osteomyelitis, must be shown for compensable purposes.  The loss of the alveolar process as a result of periodontal disease is not considered disabling.  See 38 C.F.R. § 4.150, Diagnostic Code 9913.  Here, while the January 2017 opinion supports loss of teeth due to trauma in service, it does not address whether there was loss of substance of the maxilla or mandible.  As such, the Board finds that remand for a VA examination and opinion is necessary.

On remand, updated records should be obtained, and the Veteran should be asked to identify all sources of dental treatment since service.

Accordingly, the case is REMANDED for the following action:

1.  With the assistance of the Veteran, identify and request any outstanding records related to dental treatment of the Veteran since service.  All VA dental treatment records dating since service should also be associated with the electronic claims file.   All records/responses received must be associated with the electronic claims file. 

2.  Schedule the Veteran for an updated VA dental examination.  The examiner should review the claims file, and any necessary imaging studies should be taken in connection with the claim.  Following the foregoing and examination of the Veteran, the examiner should respond to the following:

State whether it is at least as likely as not (i.e., 50 percent degree of probability or higher) that any current dental disability is due to the Veteran's in-service dental trauma.  

The examiner should consider the Veteran's statements as to the circumstances surrounding his in-service dental trauma to be credible for purposes of the opinion.  The examiner must also address whether any in-service dental trauma caused a loss of substance of the body of the maxilla or mandible, resulting in a loss of teeth, and, if so, specify any teeth so affected.  

Specifically, the examiner should address the Veteran's claimed dental trauma in 1954; extractions of teeth #7 and #10 in July 1954; and, placement of a fixed bridge from teeth #6-11.  The examiner should provide a statement as to whether the Veteran's loss of teeth in service involved loss of substance of the body of the maxilla or mandible, and/or included loss of the masticatory surface that cannot be restored by prosthesis.

A rationale for all opinions should be provided.

3.  After completing the requested actions, and any additional action deemed warranted, readjudicate the claim on appeal.  If the benefit sought on appeal remains denied, provide a supplemental statement of the case to the Veteran and his representative and afford them an opportunity to respond.  Then, return the case to the Board, if in order.

The appellant has the right to submit additional evidence and argument on the matter or matters 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).



______________________________________________
S. C. KREMBS
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs