Citation Nr: 21003637 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 16-07 188 DATE: January 22, 2021 ORDER The decision of the Board of Veterans' Appeals (Board) of April 23, 2019 is vacated. Entitlement to service connection for dental trauma to tooth #13 is granted. Entitlement to service connection for arthritis of the right ring finger is granted. Entitlement to an effective date prior to February 29, 2008 for the grant of service connection for distal phalanx fracture, right thumb is denied. Entitlement to an effective date prior to February 29, 2008 for the grant of service connection for left thumb fracture is denied. Entitlement to an effective date prior to February 29, 2008 for the grant of service connection for chip fracture, distal end of left ring finger is denied. Entitlement to an effective date prior to February 29, 2008 for the grant of service connection for residuals of cold injury, nose is denied. Entitlement to an effective date prior to February 29, 2008 for the grant of service connection for residuals of cold injury, right and left hands is denied. FINDINGS OF FACT 1. The Board issued a decision on April 23, 2019 without affording the Veteran a requested hearing. 2. The Veteran suffered in-service trauma to tooth # 13 that resulted in bone loss. 3. The Veteran has arthritis of the right ring finger that has been medically associated with service. 4. The Veteran’s only claim for service connection for distal phalanx fracture, right thumb was received February 29, 2008. 5. The Veteran’s only claim for service connection for left thumb fracture was received February 29, 2008. 6. The Veteran’s only claim for service connection for chip fracture, distal end of left ring finger was received February 29, 2008. 7. The Veteran’s only claim for service connection for residuals of cold injury, nose was received February 29, 2008. 8. The Veteran was denied service connection for residuals of cold injury, right hand in a September 1997 decision of the Board of Veterans’ Appeals (Board). That decision is final. 9. The Veteran was denied service connection for residuals of cold injury, left hand in a September 1997 decision of the Board of Veterans’ Appeals (Board). That decision is final. CONCLUSIONS OF LAW 1. The criteria to vacate the Board’s April 23, 2019 decision have been met. 38 U.S.C. § §§ 7104(a); 38 C.F.R. § §§ 20.700, 20.904. 2. The criteria for entitlement to service connection for dental trauma to tooth number 13 have been met. 38 U.S.C. §§ 1110, 1131, 1712; 38 C.F.R. §§ 3.381, 4.150. 3. The criteria for entitlement to service connection for right ring finger arthritis have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to an effective date prior to February 29, 2008 for the grant of service connection for distal phalanx fracture, right thumb have not been met. 38 U.S.C. §§ 5110; 38 C.F.R. § 3.400. 5. The criteria for entitlement to an effective date prior to February 29, 2008 for the grant of service connection for left thumb fracture have not been met. 38 U.S.C. §§ 5110; 38 C.F.R. § 3.400. 6. The criteria for entitlement to an effective date prior to February 29, 2008 for the grant of service connection for chip fracture, distal end of left ring finger have not been met. 38 U.S.C. §§ 5110; 38 C.F.R. § 3.400. 7. The criteria for entitlement to an effective date prior to February 29, 2008 for the grant of service connection for residuals of cold injury of the nose have not been met. 38 U.S.C. §§ 5110; 38 C.F.R. § 3.400. 8. The criteria for entitlement to an effective date prior to February 29, 2008 for the grant of service connection for residuals of cold injury, right hand and left hand have not been met. 38 U.S.C. §§ 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1974 to June 1977. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from December 2011 and March 2013 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019 the Board issued a decision without affording the Veteran a requested hearing. That decision will be vacated. In the April 2019 decision, the Board remanded the issue of service connection for a dental disability for treatment purposes. That issue was subsequently granted in an August 2020 rating decision. Thus, that matter is no longer before the Board. In October 2019, the Veteran testified at a hearing before the undersigned Veterans Law Jude (VLJ). A transcript is associated with the claims folder. 1. The decision of the Board of Veterans' Appeals (Board) of April 23, 2019 is vacated. The Board may only decide an appeal after affording the Veteran an opportunity for a hearing. 38 C.F.R. § 20.700 (a). In his January 2016 VA Form 9, the Veteran requested a videoconference hearing before the Board. The Veteran was not afforded the requested hearing prior to the Board issuing a decision on the Veteran’s claim on April 23, 2019. The Board’s failure to provide the Veteran with the requested hearing was a denial of due process. 38 C.F.R. § 20.904 (a)(3). Controlling laws and regulations provide that the Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board’s own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § § 7104; 38 C.F.R. § § 20.904 (a). With the above criteria in mind, the Board finds that Veteran was denied due process of law when the Board issued a decision in April 2019 without affording him the requested hearing. Accordingly, the Board must vacate its April 23, 2019, decision. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to establish service connection a Veteran must show: “(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.” Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). 2. Entitlement to service connection for dental trauma to tooth #13 The Veteran contends that he suffered dental trauma in service that resulted in damage to tooth number 13. He testified before the undersigned that during basic training in 1974 he was accidentally hit in the mouth with an M16 rifle, fracturing his tooth. Compensation for a dental disability may be granted for a condition that resulted from combat or other in-service trauma. 38 U.S.C. § 1712; 38 C.F.R. § 3.381. Dental disabilities that may be awarded compensable disability ratings are set forth under 38 C.F.R. § 4.150. These disabilities include chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss of the mandible, nonunion or malunion of the mandible, limited temporomandibular motion, loss of the ramus, loss of the condyloid or coronoid processes, loss of the hard palate, loss of teeth due to the loss of substance of the body of the maxilla or mandible and where the lost masticatory surface cannot be restored by suitable prosthesis, when the bone loss is a result of trauma or disease but not the result of periodontal disease. 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. An April 1977 service treatment record included a reference to tooth number 13 having a fracture and crown. A VA examination in January 2013 noted X-ray evidence of “some bone loss on #13.” The Veteran’s private dentist in January 2016 noted enamel fractures and defective restoration of tooth #13.   The dentist stated: The previous dentistry of tooth #13 is over 10 years old. This tooth has a large existing restoration which weakens the cusps that require replacement. Tooth #13 also has recurrent decay that is too extensive to allow a more conservative filling. My medical opinion is to treat this tooth with a porcelain fused to metal crown. On VA examination in October 2019, the examiner noted anatomical loss of tooth number 13 from bony injury. The examiner opined that the present disability was at least as likely as not the result of in-service injury, event, or illness: There is no record of an injury however at the time the claimant report being hit, tooth # 13 was fractured and Fort Knox dental record of 1974 describe the buccal surface of # 13 as fractured and may possibly need a crown. This is consistent with an injury. In 1977 dental record show that the crown was no longer indicated due to the absence of pathology after 3 years. Since then dental records show that the tooth had to be restored twice with resin in 1996 and again in 2005. It is presently broken again. As the evidence establishes that the Veteran has bone loss associated with in-service trauma to tooth #13, service connection for dental trauma to tooth # 13 is warranted. 3. Entitlement to service connection for a right ring finger disability The Veteran seeks service connection for a right ring finger disability. He testified before the undersigned that he injured the finger jumping from airplanes in service. He also testified that he currently had arthritis of the right ring finger. Service treatment records contain no record of injury to the right ring finger. A VA examiner in September 2011 found that the Veteran had disabilities of the left ring finger, left thumb, and right thumb. There was no diagnosis for the right ring finger. A January 2019 statement from a VA physician noted that the Veteran had ‘frostbite arthritis of both hands’ directly related to service. At a VA examination in June 2019 the Veteran reported that he was exposed to extreme cold temperature in 1976 and it affected his hands. He stated that one night the temperature got down to 45 below freezing and he started experiencing cold and numbness in both hands. The examiner noted that X-rays of the hands showed there is mild joint space narrowing and marginal osteophyte formation at the distal interphalangeal joints of the fingers. The findings were compatible with mild interphalangeal osteoarthritis with progression from September 2011. In pertinent part, the examiner remarked that the findings were a continuation of service-connected disability with a progression of arthritis. The Veteran currently has X-ray evidence of arthritis of the right ring finger. He has provided credible testimony regarding an in-service injury to that finger, and a VA physician has opined that the Veteran’s current arthritis “in both hands” is related to the frostbite in service and a progression of the service-connected cold weather injury. The evidence supports a finding that the Veteran’s arthritis of the right ring finger is thus also related to the in-service cold weather service. Service connection for arthritis of the right ring finger is warranted. Earlier Effective Dates Unless specifically provided otherwise in this chapter [38 U.S.C. §§ 5100 et seq.], the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” 38 U.S.C. § 5110 (a). If a claim for disability compensation is received within one year of separation from service, the effective date of an award is the day following separation. 38 U.S.C. § 5110 (b)(1). 4. Entitlement to an effective date prior to February 29, 2008 for the grant of service connection for residuals of cold injury, nose 5. Entitlement to an effective date prior to February 29, 2008 for the grant of service connection for distal phalanx fracture, right thumb 6. Entitlement to an effective date prior to February 29, 2008 for the grant of service connection for left thumb fracture 7. Entitlement to an effective date prior to February 29, 2008 for the grant of service connection for chip fracture, distal end of left ring finger The Veteran has challenged the effective date of the grant of service connection for his distal phalanx fracture, right thumb; left thumb fracture; chip fracture, distal end of left ring finger; residuals of cold injury, nose, which is February 29, 2008. As the analysis for the above disabilities is the same, the Board will address them together. The Veteran separated from service in June 1977. He first filed his claim for service connection for the above listed disabilities on February 29, 2008. The only prior claim for disability was for the residuals of cold injury for left and right hands. The prior claim did not include any of the above listed disabilities. There were no informal claims (prior law) or intent to file a claim. The claim was not received within one year of separation from service and the grant was not based upon a liberalizing law or VA issue. When assigning the effective date for the grant of service connection for distal phalanx fracture, right thumb; left thumb fracture; chip fracture, distal end of left ring finger; residuals of cold injury, nose, the RO used this date of receipt of claim. Here, the Board finds no basis to establish an effective date prior to the date of receipt of the claim. Entitlement to an effective date prior to February 29, 2008 is not warranted.   8. Entitlement to an effective date prior to February 29, 2008 for the grant of service connection for residuals of cold injury, right hand and left hand The Veteran has challenged the effective date of the grant of service connection for his residuals of cold injury, right hand and residuals of cold injury, left hand, which is February 29, 2008. As the analysis for the disabilities is the same, the Board will address them together. The Veteran separated from service in June 1977. He previously filed a claim for service connection for the residuals of cold injury for left and right hands in April 1997. A September 1997 rating decision denied service connection. No notice of disagreement was submitted, and no new and material evidence was received within one year. That decision became final. While the Veteran testified before the undersigned that he went to an office of the Georgia Veterans Services in 1997 to fill out a notice of disagreement, there is no record of such form in the claims file, and the Veteran did not submit any copy despite the record being left open for 30 days following the hearing. (Continued on the next page)   The Veteran filed an application to reopen the claim February 29, 2008. There were no informal claims (prior law) or intent to file a claim between the September 1997 denial and the February 29, 2008 claim. The claim was not received within one year of separation from service and the grant was not based upon a liberalizing law or VA issue. When assigning the effective date for the grant of service connection for residuals of cold injury, right hand and residuals of cold injury, left hand, the RO used this date of receipt of claim. Here, we find no basis to establish an effective date prior to the date of receipt of the claim. Entitlement to an effective date prior to February 29, 2008 is not warranted. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Mazzucchelli, 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.