Citation Nr: 21061425 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 18-05 294 DATE: October 4, 2021 ORDER 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for residuals of Agent Orange exposure is denied. 2. Entitlement to service connection for dental trauma (claimed as dental problems involving drilled teeth and broken and falling out teeth) is denied. FINDINGS OF FACT 1. A September 2005 rating decision denied the Veteran's claim for service connection for residuals of Agent Orange exposure because such exposure, in and of itself, is not a disability for which service connection can be granted. The Veteran was properly notified of the decision and of his appeal rights the following month, in October 2005, but he did not thereafter submit a timely NOD or submit new and material evidence within one year of the October 2005 notification regarding the September 2005 rating decision. 2. Evidence submitted since the prior final September 2005 rating decision is either previously of record, cumulative or redundant of evidence already of record, or does not relate to an unestablished fact necessary to substantiate the Veteran's claim for service connection for residuals of Agent Orange exposure and does not raise a reasonable possibility of substantiating the claim. 3. The Veteran does not have a current dental disability due to trauma or injury incurred during active service. CONCLUSIONS OF LAW 1. The September 2005 rating decision that denied the Veteran's claim for service connection for residuals of Agent Orange exposure is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1103. 2. New and material evidence sufficient to reopen the Veteran's claim for service connection for residuals of Agent Orange exposure has not been added to the record. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for dental trauma (claimed as dental problems involving drilled teeth and broken and falling out teeth) have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.381. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1969 to July 1970, including service in the Republic of Vietnam. These matters come to the Board of Veterans' Appeals (Board) from a November 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Within the Veteran's January 2018 VA Form 9, Appeal to the Board, he requested a hearing before the Board; however, this request was withdrawn in writing by the Veteran's attorney in December 2018. Thereafter, although a hearing was incorrectly scheduled, the Veteran's attorney agreed that the hearing should be cancelled. As such, the Board will proceed to adjudicate the Veteran's claims on appeal. The Board is mindful that the Veteran has an additional appeal pending under the under the Appeals Modernization Act (AMA). the Board. This appeal will be addressed in a separate Board decision in docket order. The Board further acknowledges that in conjunction with the Veteran's AMA appeal, the Veteran's attorney submitted a July 2021 request for the curriculum vitae of a VA examiner who had performed a previous VA psychiatric examination of the Veteran. The Board notes that this request is not relevant to the current legacy appeal, as there have been no VA examinations performed in conjunction with the issues addressed herein. 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for residuals of Agent Orange exposure. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. However, a claim where there is a final decision may be reopened if new and material evidence is submitted. New evidence is defined as existing evidence not previously submitted to agency decisionmakers, while material evidence is defined as 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. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but also whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. In a September 2005 rating decision, the agency of original jurisdiction denied the Veteran's claim for service connection for residuals of Agent Orange exposure, stating that such exposure, in and of itself, is not a disability for which service connection can be granted. The Veteran was properly notified of the decision and of his appeal rights the following month, in October 2005, but he did not thereafter submit a timely NOD or submit new and material evidence within one year of the October 2005 notification regarding the rating decision. As such, the September 2005 rating decision is final. Since the prior final September 2005 rating decision, evidence added to the file includes ongoing VA treatment records and lay statements from the Veteran. Significantly, while such evidence is new, in that it was not previously of record, none of the evidence added since the prior final September 2005 rating decision is material, as it does not relate to an unestablished fact necessary to substantiate the Veteran's claim, namely, whether the Veteran has a current disability that is related to his active service, including his presumed exposure to herbicide agents in the Republic of Vietnam. The VA treatment records added since the September 2005 rating decision do not identify a current residual disability related to Agent Orange exposure, and the Veteran's additional lay statements have not clarified what specific residual disability he is claiming due to Agent Orange exposure in connection with his current claim; therefore, this evidence is cumulative and not material. As the evidence submitted since the prior final September 2005 rating decision is either previously of record, cumulative or redundant of evidence already of record, or does not relate to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for residuals of Agent Orange exposure, nor does it raise a reasonable possibility of substantiating the claim, the Board finds that the petition to reopen the claim for service connection for residuals of Agent Orange exposure is denied. 2. Entitlement to service connection for dental trauma (claimed as dental problems involving drilled teeth and broken and falling out teeth). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. To establish a right to compensation for a present disability, 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. The Veteran claims entitlement to service connection for dental trauma, including within his June 2014 VA Form 9, wherein he reported dental problems since he had holes drilled in his teeth during active service that have since broken and fallen out. Dental disorders are treated differently than other medical disorders in the VA benefits system. Compensation is available only 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. To warrant compensation for a dental trauma, as opposed to treatment only, the evidence must show that a trauma has caused a loss of substance of the body of the maxilla or mandible resulting in a loss of teeth, or that disease (such as osteomyelitis, but not periodontal disease) has caused a loss of substance of the body of the maxilla or mandible resulting in a loss of teeth. Following a careful review of the evidence of record, and as discussed below, the Board finds that the preponderance of the evidence is against a finding that the Veteran has a compensable dental trauma for VA compensation purposes. The reasons for this decision follow. Service treatment records document dental treatment throughout active service, but they do not document complaints, treatment, or diagnosis of a dental trauma. Significantly, the Veteran's July1970 Report of Medical Examination at separation documents that he was missing several teeth (#3, 16, 18, and 31) and had several restorable teeth (#8, 9, 12, 14, 19, and 30), with a notation that his dental defects and diseases were "Qualified" as "Type 3" and "Class 2." However, there was no notation of a dental trauma defect or diagnosis therein. Given the above, the Board acknowledges that service treatment records document dental treatment; however, they do not support that the Veteran underwent in-service trauma or osteomyelitis resulting in loss of substance of the body of the maxilla or mandible. As such, the Board finds that the preponderance of evidence weighs against a finding of an in-service dental trauma eligible for service connection for VA compensation purposes. Post-service VA treatment records do not document dental complaints; therefore, they do not weigh in favor of a finding of a current dental trauma eligible for service connection for VA compensation purposes. The Board has also considered the lay evidence of record, including the Veteran's June 2014 VA Form 9 and related statements; however, such statements are not probative evidence of a current dental trauma or an in-service dental trauma or injury. Moreover, as noted above, service treatment records do not support a finding of in-service trauma, as the Veteran's separation dental examination does not document dental trauma in accordance with VA regulation. The Veteran has not alleged dental trauma versus stating that dental work was done during service, which is not the same as experiencing dental trauma. In sum, the preponderance of evidence is against a finding that the Veteran has a current dental trauma or in-service dental trauma eligible for service connection for VA compensation purposes. As such, there is no reasonable doubt to resolve, and the claim for service connection for dental trauma is denied. Absent a demonstration of dental trauma, service connection may be considered solely for the purpose of determining entitlement to dental examinations or outpatient dental treatment. In that case, 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 in accordance with 38 C.F.R. § 17.161. See 38 C.F.R. § 3.381. However, the Board may not consider this issue herein as it has not yet been addressed by the Agency of Original Jurisdiction (AOJ). The Veteran is advised that he may submit a request for outpatient dental treatment with the Veterans Health Administration, as that is the part of VA that has jurisdiction over dental treatment. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Chad Johnson, 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.