Citation Nr: 18115239 Decision Date: 06/29/18 Archive Date: 06/29/18 DOCKET NO. 09-07 593 DATE: June 29, 2018 ORDER Entitlement to service connection for a dental disability for compensation purposes is denied. FINDING OF FACT The Veteran’s dental disability, described as dental trauma, is not considered a disability for Department of Veterans Affairs (VA) compensation purposes. CONCLUSION OF LAW The criteria for service connection for a dental disability for purposes of compensation, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.381, 4.150. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1982 to May 1985 and from March 2001 to March 2004, with additional service in the Army National Guard and Navy Reserves. The Veteran testified at a Board of Veterans’ Appeals (Board) hearing before a Veterans Law Judge (VLJ) that is no longer employed by the Board in August 2013. The appeal was remanded in December 2013 and May 2017, the latter in order to afford the Veteran an additional hearing before the undersigned VLJ in November 2017. Transcripts of both hearings are associated with the record. The Board notes that the Veteran initiated a claim for service connection for a dental disability in January 2004 described as trauma from a weapon misfire that damaged a dental orthodontic appliance and two front teeth. He also indicated that the removed orthodontic appliance caused a temporomandibular joint (TMJ) disorder due to shifted teeth that affected jaw alignment. In a December 2013 remand, the Board found the issue of entitlement to service connection for a mandible/TMJ disorder was raised by the record and referred the claim for further action; the issue was subsequently denied in an unappealed June 2015 rating decision. The Board acknowledges that the Veteran’s November 2017 testimony included statements regarding a TMJ disorder; however, the Board finds the issue of entitlement to service connection for a TMJ disorder is not on appeal. In this instance, even if the November 2017 testimony was to be construed as disagreement with the June 2015 rating decision, the notice would not be timely. See 38 C.F.R. §§ 20.201, 20.302. Further, the Board is cognizant of the holding in Percy v. Shinseki, 23 Vet. App. 37, 47 (2009), but finds the facts of this case do not demonstrate that VA has given the Veteran the impression that the TMJ disorder is on appeal. Here, the Veteran did not disagree with the denial of a TMJ disorder and the subsequent January 2016 and May 2016 supplemental statements of the case do not indicate that a TMJ disorder was on appeal. While new evidence was added to the record in January 2018, since the last adjudication of the claim by the Agency of Original Jurisdiction (AOJ), the Board finds it is duplicative of evidence already of record. Accordingly, initial review of the evidence by the Board is appropriate. See 38 U.S.C. § 7105(e); 38 C.F.R. § 20.1304(c). In addition, to the extent that the Veteran’s November 2017 testimony and January 2018 buddy statement included reports of an in-service injury, current jaw clicking, and bruxism that may be related to service or posttraumatic stress disorder (PTSD), the Board advises the Veteran to notify his representative or submit the appropriate application form to the AOJ if he desires to reopen his claim for service connection for a TMJ disorder due to service and/or secondary to PTSD. 38 C.F.R. §§ 3.1(p), 3.155 (How to File a Claim), 3.160. Finally, the Board notes that the December 2013 remand found the Veteran’s claim for a dental disability for compensation purposes included a claim for VA outpatient treatment. See Mays v. Brown, 5 Vet. App. 302 (1993). Review of the record indicates that the AOJ has not adjudicated this aspect of the Veteran’s claim and it is referred to the AOJ for appropriate action, to specifically include referral of the claim for dental treatment to the appropriate VA Medical Center. See 38 C.F.R. § 3.381(a). The Veteran asserts that service connection is warranted for dental trauma from being struck in the face by a grenade launcher in 1983. He reported that the alignment of his front incisors was altered after an orthodontic appliance was removed because it had been damaged by the impact; he indicated that he subsequently developed a gap between his front teeth and that the left front incisor rotated. In August 2013 and November 2017 testimony, he noted that no teeth were lost due to the injury, rather the removal of other teeth in active service were unrelated. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). However, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not disabilities for VA compensation purposes. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150, Diagnostic Code 9913. Initially, the Board notes that the Veteran has not contended, nor does the evidence indicate, that any missing teeth or bone and tissue loss constitutes loss of substance of body of the maxilla or the mandible due to trauma or disease such as osteomyelitis. See 38 C.F.R. § 4.150 (noting that current legal authority only allows compensation 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.). Rather, service treatment records (STRs) reflect treatment for periodontitis, calculus, distal pocket bone loss, and tooth extractions. A September 2004 examination diagnosed a mild diastema between teeth #8 and #9 and noted that the Veteran had a resin-bonded retainer placed between teeth #8 and #9 in 1977 that loosened in an in-service grenade launcher accident. The September 2004 examiner documented current complaints of spacing between the front teeth and additional missing teeth that were not due to the in-service dental trauma. Further, a January 2016 VA examination found no evidence of a dental disability, to include mandible or maxilla injury or loss, anatomical loss or bony injury resulting in loss of teeth; the report noted that a January 2016 panographic imaging report used to demonstrate loss of teeth, mandible, or maxilla was normal. The Board acknowledges the Veteran’s contentions that his teeth are maligned due to in-service dental trauma; unfortunately, service connection for compensation purposes may not be awarded for disorders other than those listed in the Schedule of Ratings for dental and oral conditions. See 38 C.F.R. § 4.150 (noting that current legal authority only allows compensation 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 also 38 C.F.R. § 3.381(b). The Board is sympathetic to the concerns that have been voiced. However, as the Veteran seeks service connection for a dental disorder described as dental trauma with maligned teeth, and such a disorder may not be considered for compensation purposes, the claim for service connection for compensation purposes must be denied. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Odya-Weis, Associate Counsel