Citation Nr: 20004402 Decision Date: 01/17/20 Archive Date: 01/17/20 DOCKET NO. 15-15 880 DATE: January 17, 2020 ORDER The appeal to reopen the claim of service connection for residuals of right eye trauma is dismissed. The appeal to reopen the claim of service connection for a neck condition is dismissed. The appeal to reopen the claim of service connection for a low back condition is dismissed. Entitlement to service connection for chipped teeth is denied. REMANDED Entitlement to a rating in excess of 50 percent for post traumatic headaches is remanded. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) is remanded. Eligibility for Dependents’ Educational Assistance (DEA) under 38 U.S.C. Chapter 35 is remanded. FINDINGS OF FACT 1. In January 2019, the Veteran’s attorney wrote to the Board stating that the Veteran wished to withdraw his appeals regarding his eye trauma, neck condition and back condition claims. 2. Chipped teeth are not a disability for which service connection for compensation purposes may be granted. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal to reopen the claim of service connection for residuals of right eye trauma have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018). 2. The criteria for withdrawal of the appeal to reopen the claim of service connection for a neck condition have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018). 3. The criteria for withdrawal of the appeal to reopen the claim of service connection for a low back condition have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018). 4. The criteria for service connection for chipped teeth for VA compensation purposes have not been met. 38 U.S.C. §§ 1110, 1712 (2012); 38 C.F.R. §§ 3.303, 4.150 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1991 to December 1992. In July 2019 The Veteran withdrew his request for a hearing before the Board. 1. Whether new and material evidence has been submitted to reopen the claim for service connection for residuals of right eye trauma. 2. Whether new and material evidence has been submitted to reopen the claim for service connection for a neck condition. 3. Whether new and material evidence has been submitted to reopen the claim for service connection for a low back condition. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204. Appeals must be withdrawn in writing except for appeals withdrawn on the record at a hearing. Id. In January 2019, the Veteran’s attorney wrote to the Board stating that the Veteran wished to withdraw his appeals regarding his eye trauma, neck condition and back condition claims. Accordingly, the Board does not have jurisdiction to review these appeals and they are dismissed. Service Connection 4. Entitlement to service connection for chipped teeth. The Veteran seeks service connection for chipped teeth. The Veteran’s service dental records note that the Veteran received trauma to the teeth and upper face in October 1992. Tooth number 5, and the lower anterior teeth, were noted to be chipped on the incisional edges (enamel only). The Board notes that the evidence received since the April 2014 statement of the case (SOC) is not relevant to the question of whether the Veteran’s chipped teeth are a disability for which VA compensation benefits are payable. Accordingly, a supplemental statement of the case (SSOC) is not indicated with regards to the Veteran’s appeal for compensation benefits for his chipped teeth and the claim is now ready for Board review. The Board further notes that a June 2003 rating decision granted the Veteran service connection for dental treatment purposes only for the Veteran’s chipped teeth. Under current legal authority, compensation is only available 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 38 C.F.R. § 4.150. Compensation is available for loss of teeth only if such loss is due to loss of substance of the body of the maxilla or mandible during service due to trauma or disease such as osteomyelitis, and not to the loss of the alveolar process as a result of periodontal disease. 38 C.F.R. § 4.150, Code 9913 (Note). Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease cannot be service-connected for purposes of compensation. 38 C.F.R. § 3.381. Although the service treatment records confirm that the Veteran chipped his teeth during service due to trauma, there is no evidence that the Veteran has a dental disorder for which compensation may be payable. Specifically, as indicated previously, compensation is available for loss or damage of teeth only if such loss is due to loss of substance of the body of the maxilla or mandible during service due to trauma. Therefore, although the Veteran’s teeth were chipped in service, there is no evidence that such resulted in a loss of substance of the body of the maxilla or mandible. Thus, because the Veteran does not have a dental disorder for which VA compensation benefits are payable, the claim for service connection for chipped teeth for VA compensation purposes must be denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS FOR REMAND 1. Entitlement to a rating in excess of 50 percent for post traumatic headaches. The September 2013 rating decision on appeal granted the Veteran an increased rating of 50 percent, effective from December 28, 2011. The Veteran disagreed with that decision and asserted that he is entitled to a 100 percent rating for post traumatic headaches. The Board notes that a statement of the case was issued in April 2015. In July 2016, prior to certification of the headache claim to the Board, the Veteran was provided a VA headache examination but the AOJ did not issue a supplemental statement of the case. The Veteran’s claim just be remanded for agency of original jurisdiction review of the July 2016 VA examination report and issuance of a supplemental statement of the case. See 38 C.F.R. § 19.31(b)(1). The supplemental statement of the case must also consider a March 2018 VA headache examination report and the VA treatment records showing treatment for headaches subsequent to the April 2015 SOC. The Board further notes that the Veteran should be provided a new VA examination to determine the current severity of his headache disorder. 2. Entitlement to TDIU. The claim for TDIU is inextricably intertwined with the appeal for an increased rating for headaches. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Therefore, the claim for TDIU must be remanded pending the development and readjudication of the claim for an increased rating for headaches. 3. Eligibility for Dependents’ Educational Assistance. Eligibility to DEA is inextricably intertwined with entitlement to TDIU and is remanded as well. The matters are REMANDED for the following action: 1. Obtain the Veteran’s updated VA treatment records. 2. Provide the Veteran a VA examination to determine the current severity of the Veteran’s service-connected headache disorder. The examiner should discuss the effect of the Veteran’s headaches on the Veteran’s ability to work. The examiner should discuss the combined functional impact of the Veteran’s service-connected disabilities (headaches and fascial scars), in regards to employment for which he would otherwise be qualified. The VA examiner should review the evidence associated with the record, including the December 31, 2018 private vocational assessment report. 3. When the above actions have been accomplished, provide the Veteran and his representative with a supplemental statement of the case that includes review of all evidence obtained since the April 2015 SOC. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Jones, 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.