Citation Nr: 19148949 Decision Date: 06/25/19 Archive Date: 06/24/19 DOCKET NO. 15-17 969 DATE: June 25, 2019 ORDER 1. The appeal to reopen a claim of service connection for a back disability is granted. 2. Entitlement to service connection for a dental disability, for the purpose of VA compensation, is denied. REMANDED 3. Entitlement to service connection for a back disability on the merits is remanded. 4. Entitlement to service connection for a dental disability, for the purpose of outpatient dental treatment by VA, is remanded. FINDINGS OF FACT 1. A January 2002 unappealed rating decision continued a denial of service connection for a back disability, that had been denied essentially on the basis that a current back disability was not shown to be related to the Veteran’s service. 2. Evidence received since the January 2002 rating decision shows a diagnosis of a current back disability; tends to relate the Veteran’s back disability to an injury in service; relates to an unestablished fact necessary to substantiate the claim; and raises a reasonable possibility of substantiating the claim. 3. The evidence does not show that the Veteran lost any teeth due to bone loss of the body of the maxilla or the mandible as a result of trauma or disease during service. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for a back disability may be reopened. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156. 2. Service connection for a dental disability for VA compensation purposes is not warranted. 38 U.S.C. §§ 1131, 1712, 5107(b); 38 C.F.R. §§ 3.303, 3.381, 4.150, 17.161. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served from March 1976 to May 1977. This case is before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 Department of Veterans Affairs (VA) rating decision. In January 2019, a videoconference hearing was held before the undersigned. Regarding the dental claim, it is not clear from the record what benefit the Veteran is seeking. While it appears from testimony at the Board hearing that he is solely claiming outpatient dental treatment, the RO’s adjudication of the claim does not clearly set forth the basis or grounds for its denial, that is, whether for purposes of compensation and/or outpatient treatment (the April 2015 statement of the case provided pertinent laws/regulations for service connection for treatment purposes, but the explanation for the denial referred to both compensation and outpatient treatment). Therefore, the Board will address both. 1. The appeal to reopen a claim of service connection for a back disability is granted. A January 2002 rating decision denied the Veteran service connection for a back disability, finding that new and material evidence had not been received to reopen a claim of service connection for a back disability. Previously, a July 1984 rating decision denied service connection for a back disability on the basis that the injury in service (low back strain) was acute and without residuals; it was noted that the Veteran failed to appear for a VA examination which would have determined the nature and etiology of any current back disability. The January 2002 rating decision noted that VA treatment records did not show a chronic back disease or disability while in service or within the prescribed presumptive period after service, and that the records did not demonstrate continuous treatment from service discharge to the present time. The Veteran did not appeal the July 1984 or January 2002 rating decisions to the Board or submit new and material evidence within the year following notice of those decisions, and consequently each became final. The claim may be reopened if new and material evidence is received. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156. The record at the time of the January 2002 rating decision included service department and treatment records. Service department records show the Veteran served on active duty in the Air Force from March 1976 to May 1977. Service treatment records (STRs) show that in February and March 1977, he was seen with complaints of low back pain after running up the stairs. Examinations showed muscle spasm in the left lumbar area, and his diagnoses included low back strain. A March 1977 X-ray found evidence of “old arthritis in the junction (dorsal lumbar).” He was put on a physical profile in March 1977 and underwent treatment including moist heat and electrical stimulation therapy. On March 8, 1977, his condition was noted to have improved, and he was not seen for his low back after March 15, 1977. A May 1977 separation physical examination showed his spine was normal on clinical evaluation, and in a report of medical history at that time he did not endorse having recurrent back pain. After service, VA records show that beginning in 2000 the Veteran had a diagnosis of degenerative disc disease (DDD) of the back (and neck); a January 2000 lumbosacral spine MRI showed diffuse disc problems. A June 2000 outpatient record notes that the Veteran had a history of an accident with neck/back injury, and that he had chronic pain. On an August 2000 visit, the Veteran reported that in 1982 he injured himself, sustaining torn abdominal muscles and low back problems, and that he also was in a motor vehicle accident (MVA), sustaining whiplash and some shoulder damage as well as disc damage to the cervical spine and lumbar area. A February 2001 outpatient record notes that the Veteran was involved in a MVA in July 1988 leading to cervical spine and lumbosacral spine injury. “New evidence” means existing evidence not previously submitted to agency decision makers; “material evidence” means existing 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 of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of reopening a claim, the credibility of the evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In September 2014, the Veteran sought to reopen the claim of service connection for a back disability. Evidence received since the January 2002 rating decision includes VA medical records, reflecting the Veteran’s diagnosis and treatment of multi-level DDD of the thoracolumbar spine, lumbosacral disc herniation, and lumbar radiculopathy (as confirmed by MRI in August 2012); a medical report dated in April 2019 wherein R. Calio, D.C., opined that it was more likely than not that the in-service back incident contributed to degenerative spine problems and chronic pain from which the Veteran has been found disabled at an early age; and an April 2019 statement by the Veteran’s sister recalling him describing his back injury and pain to their parents soon after his military discharge. Such records are new evidence, as they were not considered by the RO in January 2002, and they are also material evidence, as they relate to the requisite service connection elements of a current diagnosis of the claimed disability and a nexus, or causal connection, between the current disability and the documented injury in service. Additional evidence received since the January 2002 rating decision also includes testimony by the Veteran at the January 2019 Board hearing describing the circumstances of his low back injury in service (when he was pulling a fire hose line) and his back symptoms and treatment after service. His testimony is new evidence, as it was not considered in January 2002, and material evidence, as it tends to show that the Veteran has experienced back symptomatology since service. He is competent to provide such evidence, and for the purpose of reopening, it is presumed credible. In short, considered with the evidence of record in January 2002, this evidence constitutes new and material evidence sufficient to reopen the claim of service connection for a back disability. 2. Entitlement to service connection for a dental disability, for the purpose of VA compensation, is denied. VA compensation is only available for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150. For Class I service-connected dental conditions for which disability compensation may be provided, the types of dental conditions covered are loss of teeth due to bone loss of the body of the maxilla or the mandible due to trauma or disease such as osteomyelitis, but not periodontal disease. 38 C.F.R. § 4.150, Diagnostic Code 9913; 38 C.F.R. § 17.161(a). Otherwise, a veteran may be entitled to service connection for dental conditions including treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal (i.e., gum) disease, for the sole purpose of receiving VA outpatient dental services and treatment, if certain criteria are met. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 17.161. A claim under this basis is discussed in the Remand section below. Here, service dental records show that the Veteran fell and lost two front false teeth in February 1977. He was seen in the dental clinic on a few occasions, for examination and for insertion of a temporary prosthetic. The last dental clinic visit is documented on April 27, 1977, when he was examined, and it was indicated that there was insufficient time to fabricate a replacement due to [military base] closure and phase down. It was also noted that the Veteran was “seperating [sic]” from service. At the Board hearing in January 2019, the Veteran testified that he had a bridge emplaced before service at the age of 12 or 13 due to a prior dental injury, and that during service his bridge was inadvertently “bashed” out when he was going up a stairwell in the barracks and someone else was coming out through a doorway at the same time. He stated that he went to the dentist who fixed him with a temporary bridge, and that before he could receive a permanent bridge he was discharged. The Veteran confirmed that his claim essentially concerned a pre-service prosthetic device that was broken during service and not adequately repaired. The Veteran’s attorney argued that the loss of the prosthetic device was the “functional equivalent of [the Veteran’s] tooth” and therefore could be service-connected as due to trauma. After applying the relevant dental provisions to the facts of the case, the Board concludes that service connection for a dental disability for the purpose of receiving VA compensation is not warranted. As the Veteran does not have the type of dental condition for which compensation is payable, his claim must be denied. Clearly, the service dental records do not show, and the Veteran does not claim, that he lost any teeth due to bone loss of the body of the maxilla or the mandible as a result of trauma or disease. He sustained trauma to certain teeth many years prior to service and had a bridge in place at the time of his military enlistment. While he did lose “teeth” from trauma during service, they were false teeth. Further, even if such false teeth were the “functional equivalent” of the Veteran’s teeth under the regulations, as claimed by the Veteran’s attorney, there is still no evidence to show that the loss of such teeth was a result of bone loss of either the maxilla or mandible. Accordingly, there is no basis upon which to grant the claim of service connection for compensation purposes. REASONS FOR REMAND 1. Entitlement to service connection for a back disability on the merits. The Veteran contends that his back disability is related to a documented back injury in service. To satisfy VA’s duty to assist the Veteran in developing his claim, further development is necessary in order to decide the claim. As noted at his Board hearing and in an April 2019 report from Dr. Calio, the Veteran was receiving Social Security Administration (SSA) disability benefits, awarded in about 2001 at least in part for his back (notably, Dr. Calio stated that she reviewed his SSA file. SSA records are constructively of record, and should be obtained. In addition, the record suggests that there are both VA and private records relevant to the claim that must be sought. The Veteran reported to Dr. Calio that he first sought treatment at the Los Angeles VA hospital for back pain in 1984 (evidently, the Los Angeles RO requested medical records from the VA outpatient clinic in Los Angeles in February 1986, but it is not clear whether there were any existing record). Although there are some treatment records from VA Medical Centers in Fayetteville, Little Rock, and Philadelphia in the claims file (many submitted by the Veteran), it is not clear whether all relevant records have been received. At the Board hearing, the Veteran indicated that he was currently receiving treatment from a private provider, and he should be requested to obtain those records or have the VA request them for him. He should also be asked to furnish treatment information regarding his accidents in 1985 and July 1988. In her April 2019 report, Dr. Calio stated that he sustained a back strain in the 1985 accident, and although she also indicated that the 1988 accident involved only the Veteran’s neck (as claimed by the Veteran at the hearing), VA outpatient records in August 2000, February 2001, and September 2014 suggest that there was low back injury at that time too. The only opinion that addresses whether the Veteran’s current low back disability is related to his documented low back diagnosis in service is that of Dr. Calio. While providing an extensive review of pertinent records and citing to medical literature in support of her favorable opinion, the Board finds that it is insufficient to decide the claim. For example, she stated that she has provided care for the Veteran, but her treatment records are not of record. She described the documented back complaints and diagnosis in the STRs, but did not reconcile the findings in those records with the subsequent examination of the Veteran at separation which found a normal spine. She also stated that the Veteran sought treatment at the Los Angeles VA hospital prior to incurring a back strain in about 1985, but there are no corroborative records of treatment of the back in the file for the period from March 1977 until about 1998. Therefore, after securing additional VA and private treatment records, the RO should arrange for an examination and opinion to address the unresolved questions regarding low back disability etiology. 2. Entitlement to service connection for a dental disability, for the purpose of outpatient dental treatment. At the January 2019 Board hearing, the Veteran indicated that he was seeking a permanent bridge to replace the temporary bridge put in place after he suffered an in-service injury to the mouth that knocked out the bridge that he received prior to service. Service dental records show that in February 1977 the Veteran fell and lost two front false teeth. He was thereafter seen in the dental clinic on a few occasions for treatment to include receipt of a temporary prosthetic, with the last visit recorded on April 27, 1977, indicating that there was insufficient time to fabricate a replacement due to [the Veteran’s military base] closure and phase down and the Veteran was “seperating [sic].” The Veteran is seeking VA outpatient dental treatment. Historically, in May 1984 he initially filed a claim for “dental bridge,” the Los Angeles RO in February 1986 sought his dental records from the Los Angeles VA outpatient clinic, but it is not clear whether there was any response (or if the VA adjudicated the claim at that time). (At the Board hearing, the Veteran stated that when he filed his claim in 1984, he went to the VA medical center in Long Beach, California.) He then relocated, and in April 2001, filed another claim for “dental/bridge.” A January 2002 rating decision notes that the issue was referred to a VA dental clinic, but it is not clear what happened thereafter. His current claim for “dental injury” was received in September 2014. Regardless, a review of the record did not find that an adequate VCAA letter, notifying him of the information and evidence not of record that is necessary to substantiate his claim (especially the evidence needed to satisfy the specific criteria for eligibility for VA outpatient dental treatment), was issued. Moreover, the Agency of Original Jurisdiction has not clearly set forth the reasons and bases for denial of this claim, to include explanation why the basic eligibility criteria for VA outpatient dental treatment are not met. Further due process and evidentiary development is necessary. The matters are REMANDED for the following: 1. Secure for the claims file all VA medical records (any not already in the claims file) relating to evaluations and treatment the Veteran has received for back disability from the VA medical centers and outpatient clinics in Los Angeles, California; Fayetteville and Little Rock, Arkansas; and Philadelphia, Pennsylvania. 2. Request the Veteran to furnish private records relating to evaluation and treatment for a back disability from Dr. Calio, from his current healthcare provider (unnamed at the hearing), and from the healthcare providers in connection with accidents in about 1985 and in July 1988. Alternatively, ask him to submit medical releases so that the VA can seek the records on his behalf. 3. Obtain from the SSA all records pertaining to the Veteran’s application for SSA disability benefits, to include the determination on the claim and the medical records relied thereupon. If the records are unavailable because they have been irretrievably lost or destroyed, it should be so certified for the record (along with an explanation for their unavailability). If the records are unavailable from the SSA, ask the Veteran to obtain them from Dr. Calio (as her April 2019 report indicates that she reviewed an incomplete record). 4. Then, arrange for the Veteran to be examined by an appropriate clinician (preferably an orthopedist) to determine the nature and etiology of his back disability. The Veteran’s claims file must be reviewed by the examiner. All indicated tests should be conducted. The examiner is asked to opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s diagnosed back disability is related to his service from March 1976 to May 1977, to include the documented diagnosis and treatment for low back strain and lumbar muscle spasm in February and March 1977. The examiner should express agreement or disagreement with Dr. Calio’s statements relating the Veteran’s current back disability to service and explain the reasoning for the agreement or disagreement (with citation to supporting medical literature). The examiner should also comment on the following: the low back findings on a March 1977 X-ray in-service of evidence of “old arthritis in the junction (dorsal lumbar)” and on May 1977 separation examination showing a normal spine; the recollection of the Veteran’s sister in April 2019 that soon after his military discharge he informed their parents about his back injury and ongoing pain; and the VA (and any private) medical records on file, before and after purported accidents in about 1985 and in July 1988; and the Veteran’s current statements and testimony that he has had the same back complaints since service. If the back disability is found to not be related to the Veteran’s service, the examiner should identify the etiology considered more likely (and explain why that is so). The examiner must include complete rationale with all opinions, citing to relevant evidence, supporting clinical data and medical literature, and prior medical opinions, as appropriate. 5. Send the Veteran a VCAA letter, informing him of the provisions of 38 U.S.C. § 1712 and of 38 C.F.R. §§ 3.381 and 17.161, particularly the criteria he must satisfy to be eligible for VA outpatient dental treatment. (Continued on the next page)   6. Undertake any development of the Veteran’s dental claim, to include securing his dental records (any existing) from the Los Angeles VA outpatient clinic, the Long Beach VA Medical Center, and the VA dental clinic in Arkansas (to which the North Little Rock RO referred his claim in January 2002), needed to decide the claim of service connection for dental disability for VA outpatient dental treatment purposes. George R. Senyk Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Debbie Breitbeil, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.