Citation Nr: 21065731 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 17-08 357 DATE: October 27, 2021 ORDER Entitlement to service connection for a dental disorder for compensation purposes is denied. REMANDED Entitlement to service connection for a dental disorder for the purpose of obtaining VA outpatient treatment is remanded. FINDING OF FACT 1. The Veteran's teeth numbers 16 and 17 were lost as a result of bone loss due to periodontal disease. CONCLUSION OF LAW 1. The criteria for establishing service connection for a dental disorder for compensation purposes are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.381, 4.150, 17.161. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1980 to July 2002. These matters come to the Board of Veterans' Appeals (Board) from a July 2017 rating decision issued by the Agency of Original Jurisdiction (AOJ). In April 2021, the Veteran's case was received at the Board. The Board notes the Veteran had initially requested a hearing for the claims on appeal but later waived the request. See March 2018 VA Form 9; September 2021 Statement in Support of Claim. Entitlement to service connection for a dental disorder for compensation purposes. The question for the Board is whether the Veteran has a dental disorder that meets the criteria for any of the Diagnostic Codes (DCs) listed under 38 C.F.R. § 4.150. For the reasons discussed below, the Board concludes the evidence does not support finding a compensable rating is warranted under DCs 9900 through 9918. VA compensation benefits and outpatient dental treatment may be provided for certain types of service-connected dental disorders. For other types of service-connected dental disorders, the Veteran may receive treatment only. 38 U.S.C. § 1712 ; 38 C.F.R. §§ 3.381, 4.150, 17.161. The Board must construe a claim for service connection for a dental condition as both a claim for compensation and, at a minimum, a claim for Class I outpatient dental treatment. Mays v. Brown, 5 Vet. App. 302, 306-7 (1993). With regards to compensation for dental conditions, it is only available for certain types of dental and oral conditions, which are rated under 38 C.F.R. § 4.150, Diagnostic Codes (DCs) 99009918. Simington v. West, 11 Vet. App. 41, 44 (1998); 38 C.F.R. § 4.150. Diagnostic Code 9913 applies to service connection claims involving teeth. Compensation is not available for loss of the alveolar process (the ridge on the surfaces of the upper (maxilla) and lower (mandible) jaws containing the tooth sockets) as a result of periodontal disease, since such loss is not considered disabling." 38 C.F.R. § 4.150, DC 9913. Thus, to get compensation benefits for a dental disability, as opposed to outpatient dental treatment solely, the evidence must show there was dental trauma or disease (such as osteomyelitis). Also, the trauma or disease caused a loss of substance of body of the maxilla or mandible resulting in a loss of teeth. When there is not sufficient evidence to find dental trauma, service connection may be considered solely for the purpose of determining entitlement to dental examinations or outpatient dental treatment. Woodson v. Brown, 8 Vet. App. 352, 354 (1995). Treatable carious teeth (teeth showing tooth decay or cavities), 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 as provided in 38 C.F.R. § 17.161. 38 C.F.R. § 3.381(a). These conditions and other dental conditions or disabilities that are noncompensably rated under § 4.150 may be service connected for purposes of Class II or Class II(a) dental treatment. Id. at (b). But the decision on whether a Veteran can be service connected for treatment purposes must be made by the Veterans Health Administration (VHA) in the first instance. Id. The VHA is a separate from the Veterans Benefits Administration (VBA) (to include the Board) within the VA. The VBA adjudicates claims for service connection of a dental condition for treatment purposes after VHA determines a veteran meets the basic eligibility requirements of § 17.161. Id. at (a). Beginning with the Veteran's service, his initial dental examination does not show any missing teeth. See January 14, 1980, SF 608, Dental Health Record, Part 15. His service dental records show at least five visits to a dental clinic through August 1983, with multiple caries noted, to include teeth numbers 4, 15, 18, and 31. Id. at Part 17, Services Rendered. Dental caries are tooth decay or cavities. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (DORLAND'S) 291 (33rd ed. 2020). In August 1983, the Veteran visited a dental clinic with complaints of bleeding gums. The military dentist took X-ray images; he did not note any diagnoses. The next month, in September 1983, wisdom tooth number 1 was extracted. He continued to visit a dental clinic for annual exams and dental treatment through March 31, 2000, when a comprehensive periodontic exam was conducted. During the Veteran's March 2000 comprehensive periodontic exam X-ray imaging showed slight bone loss around teeth numbers 16 (upper left wisdom tooth) and 17 (lower left wisdom tooth). See March 31, 2000, Periodontal Chart at 2. The military dentist opined that the cause of the bone loss is bacterial plaque and diagnosed moderate to advanced adult periodontitis with good prognosis. The dentist also noted the treatment for the disease would include the extraction of teeth numbers 16 and 17. Id. The record reflects they were extracted on June 29, 2000. See SF 603A, Dental Health Record, Part 10, Services Provided. There is no record of medical complaints following their extraction. The remainder of the Veteran's service dental records show he participated in periodic oral evaluations through March 2005. The Board notes the Veteran's service dental charts show that, sometime in service, tooth 32 (lower right wisdom tooth) was also removed. Altogether, the Veteran's service dental records show four teeth were extracted, to include wisdom teeth numbers 1, 16, 17, and 32. In June 2017, the VA received an entitlement claim for dental abscesses. The Board notes that, since the filing of the Veteran's claim, the VA has not received additional evidence indicating which teeth are abscessed. He has he not provided additional details about the event(s) he believes caused of the abscesses. Neither has he indicated whether he is seeking entitlement to compensation benefits or VA dental outpatient treatment benefits. Turning to the Veteran's claim for a dental disorder, because the Board is required to view a claim for dental disability benefits as a claim for both compensation and VA outpatient dental treatment benefits, the Board will first address the compensation claim raised by the record. Mays, 5 Vet. App. at 306. Given that the Veteran's service treatment records (STRs) show teeth numbers 16 and 17 were extracted due to bone loss of the jaw, the Board finds the record raises a claim for service connection for loss of teeth. See SF 603A, Dental Health Record, Part 10, Services Provided. The first issue is determining whether one or more DCs under 38 C.F.R. § 4.150 apply to this Veteran's claim. Given that the record shows tooth loss due to bone loss of the upper and lower jaws, DC 9913, applies to the claim. For a compensable disability rating under 9913, the Veteran must have suffered bone loss of the upper (maxilla) and/or lower (mandible) jaw that, in turn, caused the tooth loss. Also, the bone loss must have been due to diseases other than periodontal disease. 38 C.F.R. § 4.150, DC 9913 Note (1). The Veteran's STRs show he lost wisdom teeth 16, 17, due to bone loss of the jaws brought on by a disease that does not qualify for a compensable rating under DC 9913. His service dental records show the bone loss that led to the loss of teeth 16, 17, was due to periodontitis, which is a periodontal disease. Loss of the alveolar process due to periodontal disease is specifically excluded from consideration of service connection under 9913. See 38 C.F.R. § 4.150, DC 9913 Note (1). The alveolar process is the portion of bone in either the upper or lower jaws that support the teeth. DORLAND'S at 1494. Given that the Veteran has not provided any evidence to weigh against his STRs, the Board assigned the STRs great weight against the assignment of a compensable rating under 9913. The Board recognizes the Veteran has not been provided a VA disability examination for a tooth loss claim; however, the Board finds there is sufficient evidence to decide the claim. An examination is warranted when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Here, the record includes medical evidence clearly showing the Veteran lost teeth numbers 16, 17, due to bone loss caused by periodontal disease; therefore, the Board finds obtaining a medical opinion on that matter is not needed to decide the claim. Id. As noted above the Veteran has not provided any evidence that gives the Board reason to doubt his STRs. Neither has he asserted the dental surgeries performed to remove teeth numbers 16, 17, led to the development of a dental disorder, to include abscesses. Even if the Veteran contends his reference to abscesses should be fairly interpreted to mean abscesses linked to loss of teeth numbers 16 and 17, it would not have raised a claim for a compensable dental disability. Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not considered disabling for VA disability compensation purposes. 38 U.S.C. § 1712; 38 C.F.R. § 3.381. In this case, the evidence weighs strongly against finding he lost teeth numbers 16 and 17 due to bone loss of either jaw caused by a qualifying disease, like osteomyelitis. 38 C.F.R. § 4.150, DC 9913 Note (1). The particular disease that led to loss of teeth 16, 17 is excluded from 9913. In light of the evidence, the Board concludes the Veteran has not demonstrated he meets the criteria 9913 requires for a compensable disability rating. Given that the record does not indicate he has any other dental disorder that meet the criteria for compensable disability ratings under DCs 9900 through 9918, like chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible (9900), loss of the mandible (9901), nonunion and malunion of the mandible or maxilla (9903, 9904), the Board finds the Veteran does not have a dental disability for VA compensation purposes. 38 C.F.R. § 4.150. Accordingly, the Veteran's service-connection claim must be denied. 38 C.F.R. §§ 3.381; 4.150; Gilbert, 1 Vet. App. at 54. Because the Board has decided the Veteran does not have a compensable service-connected dental disability, he does not meet the requirements for Class I outpatient dental treatment. A service-connected compensable dental disability is required for Class I dental treatment. 38 C.F.R. § 17.161(a). Now that the Board has explained why entitlement to a compensable disability rating under 38 C.F.R.. § 4.150 is not warranted for teeth numbers 16 and 17, the Board finds he was seeking service connection for VA outpatient dental treatment benefits when he sought VA benefits for dental abscesses. Given that the VHA has not made the initial determination on that matter and VA regulations require it do so in the first instance, the matter cannot be addressed by the Board at this time. 38 C.F.R. § 3.381(a). REASONS FOR REMAND 1. Entitlement to service connection for a dental disability for the purpose of obtaining VA outpatient treatment is remanded. Although the Board regrets the delay, the Veteran's claim must be remanded before it is able to decide on the merits. VA regulations provide the VBA (which includes the Board) will adjudicate a claim for service connection of a dental condition for dental treatment purposes after the VHA makes an eligibility determination. 38 C.F.R. §§ 3.381(a), 17.161. Here, the Veteran has indicated he has dental abscesses for one or more teeth. Given that dental or alveolar abscesses are not considered disabling for VA disability compensation purposes and the VHA has not adjudicated eligibility for VA outpatient dental treatment in the first instance, a remand is warranted for VHA to adjudicate the issue of eligibility for VA dental treatment. The matters are REMANDED for the following action: Refer the claim for dental treatment to the appropriate VA Medical Center (VAMC) to determine if the Veteran meets the basic eligibility requirements for VA outpatient dental treatment under 38 C.F.R. § 17.161. If the VAMC determines that the Veteran meets the basic eligibility requirements for VA outpatient dental treatment and requests the VBA make a determination, then adjudicate the claim. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dean, Michael S. 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.