Citation Nr: 19155397 Decision Date: 07/17/19 Archive Date: 07/17/19 DOCKET NO. 17-34 087 DATE: July 17, 2019 ORDER New and material evidence has not been presented, and the Veteran’s request to reopen her previously denied claim for entitlement to service connection for an implant crown is not reopened. Service connection for a buccal abcess is denied. REFERRED A claim for service connection for a dental disorder is also a claim for VA outpatient dental treatment. Mays v. Brown, 5 Vet. App. 302 (1993). As such, in the current case, adjudication of the Veteran’s claim for service connection for a buccal abcess must also include consideration of service connection for the purpose of establishing eligibility for outpatient dental treatment as provided in 38 C.F.R. § 17.161. Douglas v. Derwinski, 2 Vet. App. 435 (1992); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Therefore, the issue of entitlement to service connection for a dental disability for dental treatment purposes was raised by the Veteran in her February 2016 service connection claim. However, this issue has not been adjudicated by the appropriate Agency of Original Jurisdiction (AOJ), which would be the appropriate VA medical facility. Therefore, 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). FINDINGS OF FACT 1. A December 2014 rating decision denied the Veteran’s claims for entitlement to service connection for an implant crown; the Veteran did not file a notice of disagreement or submit new and material evidence within a year of the rating decision, and evidence obtained since the December 2014 rating decision does not raise a reasonable possibility of substantiating the claim for entitlement to service connection for an implant crown. 2. The evidence of record is against a finding the Veteran currently has a dental disorder for which VA compensation may be paid. CONCLUSIONS OF LAW 1. New and material evidence has not been submitted, and the Veteran’s request to reopen her previously denied claim for entitlement to service connection for an implant crown is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for a buccal abcess have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1999 to April 2006. Reopening Claim New evidence is defined as 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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, in Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010), the U.S. Court of Appeals for Veterans Claims (Court) clarified that the phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. In August 2014, the Veteran filed a claim for entitlement to service connection for an implant crown, which was denied by a December 2014 rating decision. The Veteran neither appealed the December 2014 rating decision, nor submitted any new and material evidence pertaining to this issue within a year of that rating decision, meaning that the rating decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. At the time of the December 2012 rating decision, the claims file contained no evidence showing the Veteran had loss of whole or part of the mandible, nonunion or malunion of the mandible, loss of whole or part of the ramus, loss of whole or part of the maxilla, nonunion or malunion of the maxilla, loss of the condyloid or coronoid process, or loss of any part of the hard palate. In a statement received in February 2016, the Veteran sought to have her previously denied claim for an implant crown reopened asserting that her implant crown due to her duty service. The medical evidence dated after the December 2014 rating decision consists of additional VA treatment records. While the Veteran’s STRs show that she had an implant crown placed during her active service, her medical records do not document that the implant crown has resulted in loss of whole or part of the mandible, nonunion or malunion of the mandible, loss of whole or part of the ramus, loss of whole or part of the maxilla, nonunion or malunion of the maxilla, loss of the condyloid or coronoid process, or loss of any part of the hard palate. Finally, the Veteran has not submitted any new evidence showing that her implant crown has resulted in loss of whole or part of the mandible, nonunion or malunion of the mandible, loss of whole or part of the ramus, loss of whole or part of the maxilla, nonunion or malunion of the maxilla, loss of the condyloid or coronoid process, or loss of any part of the hard palate. As described above, additional evidence has been submitted since the Veteran’s claim was previously denied; however, this evidence is not new in that it was already known at the time of the previous denial that the Veteran had an implant crown, and the evidence is not material in that it does not suggest that the Veteran’s implant crown has resulted in loss of whole or part of the mandible, nonunion or malunion of the mandible, loss of whole or part of the ramus, loss of whole or part of the maxilla, nonunion or malunion of the maxilla, loss of the condyloid or coronoid process, or loss of any part of the hard palate. The Board acknowledges that the threshold for reopening a claim is low, but it is a threshold nonetheless and as described the evidence that has been added since the previous rating decision clearly does not reach that threshold with regard to the issues on appeal. See Shade, 24 Vet. App. 110, 118. Essentially, even if the Board reopened the claim, no duty to assist would be triggered. Accordingly, the request to reopen the previously denied claim of service connection for an implant crown is denied. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disability which is aggravated by a service connected disability. In order to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of a service connected disability; and (3) medical nexus evidence establishing a connection between the service connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). Dental conditions for which service-connected compensation benefits are available are set forth under 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. These conditions include loss of whole or part of the mandible, nonunion or malunion of the mandible, loss of whole or part of the ramus, loss of whole or part of the maxilla, nonunion or malunion of the maxilla, loss of the condyloid or coronoid process, or loss of any part of the hard palate. Compensation is also available for loss of teeth only if such is due to loss of substance of body of maxilla or mandible. 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. In addition, to be compensable, the lost masticatory surface for any tooth cannot be restorable by suitable prosthesis. 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 and cannot be considered for compensation purposes. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150. To establish entitlement to service connection for loss of a tooth, the Veteran must have sustained a combat wound or other in-service trauma. 38 U.S.C. § 1712; 38 C.F.R. § 3.381(b). The significance of finding that a dental condition is due to in-service trauma is that a veteran will be eligible for VA outpatient dental treatment, without being subject to the usual restrictions of a timely application and one-time treatment. 38 C.F.R. § 17.161 (c). The Veteran filed a service connection claim for a buccal abscess, which was denied by a June 2016 rating decision. She asserts that her buccal abcess is secondary to an implant crown she received during her active service. The Veteran’s STRs show that she underwent a root canal on tooth number thirteen in March 2004. She also underwent implant surgery on tooth number four in July 2004 and an implant was placed in September 2004. In November 2005, she was found to not have any significant dental problems. Her STRs do not document that she sustained a combat wound or other in-service dental trauma. The Veteran’s treatment records do not document loss of whole or part of the mandible, nonunion or malunion of the mandible, loss of whole or part of the ramus, loss of whole or part of the maxilla, nonunion or malunion of the maxilla, loss of the condyloid or coronoid process, or loss of any part of the hard palate. In June 2016, the Veteran was afforded a VA examination. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, the examiner diagnosed the Veteran with a buccal abscess of tooth thirteen that suggested failed root canal treatment and not associated with the Veteran’s implant surgery for tooth number four. While the Veteran has been diagnosed with a buccal abcess, her buccal abcess has not resulted in loss of whole or part of the mandible, nonunion or malunion of the mandible, loss of whole or part of the ramus, loss of whole or part of the maxilla, nonunion or malunion of the maxilla, loss of the condyloid or coronoid process, or loss of any part of the hard palate. As such, service connection on a direct basis is not warranted. Regarding secondary connection, the Veteran is not service connected for any dental disability. As such, service connection on a secondary basis is not warranted. (Continued on the next page)   Accordingly, the criteria for service connection for a buccal abcess have not been met, and the Veteran’s claim is denied. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Berryman, Counsel