Citation Nr: 21065797 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 18-49 656 DATE: October 27, 2021 ORDER The appeal for entitlement to service connection for irritable bowel syndrome is dismissed. The appeal as to whether new or material evidence has been received to reopen a claim for service connection for a dental condition, for compensation purposes, is denied. REFERRED The issue of service connection for a dental condition, for treatment purposes, is referred to the Veterans Health Administration for appropriate action. FINDINGS OF FACT 1. During the May 2021 Board hearing, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of the appeal as to entitlement to service connection for irritable bowel syndrome was requested. 2. Most recently, a June 2014 rating decision denied an appeal to reopen entitlement to service connection residuals of dental trauma, for compensation purposes; the Veteran did not appeal this denial in a timely manner, and no new and material evidence was received, or constructively received, within the appeal period as to this denial. 3. Evidence received subsequent to the June 2014 rating decision does not relate to an unestablished fact necessary to substantiate the claim of service connection for a dental condition, for compensation purposes; and does not raise a reasonable possibility of substantiating this claim. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal as to entitlement service connection for irritable bowel syndrome have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The June 2014 rating decision which denied an appeal to reopen entitlement to service connection residuals of dental trauma, for compensation purposes, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 3. New and material evidence sufficient to reopen the previously denied claim for service connection for a dental condition, for compensation purposes, has not been received. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156 (a), 20.1105. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 2000 to August 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2018 rating decision issued by the Department of Veterans Affairs (VA). The March 2018 rating decision, in pertinent part, denied service connection irritable bowel syndrome and denied an appeal to reopen entitlement to service connection residuals of dental trauma (claimed as a dental condition). The Board notes that a claim of service connection for compensation for a dental condition potentially raises a request for VA outpatient dental treatment. See Mays v. Brown, 5 Vet. App. 302, 306 (1993). Further, in May 2021 testimony, the Veteran explicitly raised a claim for dental treatment. However, the Veterans Benefits Administration does not have jurisdiction over a claim for VA outpatient dental treatment until after the Veterans Health Administration determines a veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161 and requests Veterans Benefits Administration make a determination on certain adjudicatory questions. See 38 C.F.R. § 3.381. Here, the record is unclear as to whether the Veterans Health Administration has made the threshold decision in this case and if the Veteran has already been granted dental treatment. Specifically, December 2013 and January 2014 VA treatment records documented the Veteran was within the class V dental category. Thus, the Board has referred the raised claim of service connection for dental treatment purposes for appropriate action. In May 2021, the Veteran presented testimony at a virtual hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. As a final initial matter, additional evidence consisting of the Veteran's vocational rehabilitation records, was received by VA subsequent to the most recent, September 2018, statement of the case, issued for the appeal herein. However, during the May 2021 Board hearing, the Veteran waived consideration of all additional evidence by the Agency of Original Jurisdiction. Thus, the Board may proceed with appellate review. 1. Entitlement to service connection for irritable bowel syndrome 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. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. During the May 2021 Board hearing, the Veteran withdrew the appeal for service connection for entitlement to service connection for irritable bowel syndrome. The undersigned Veterans Law Judge clearly identified the withdrawn issue, and the Veteran affirmed that he was requesting a withdrawal as to this issue and that he had discussed the withdrawal with his representative. The Veteran expressed understanding of the consequences of such withdrawal as explained by the Veterans Law Judge, specifically that he may refile a claim for service connection as to this disability at any time but as a consequence, any future grant of benefits would likely be no earlier than the date of a future claim for benefits for that disability. The Veteran also expressed that he understood that the undersigned Veterans Law Judge, when issuing a decision as to this issue, would just write a very small paragraph explaining he decided to withdraw this issue at the hearing. As such, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew the appeal. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). As the transcript of the hearing has been reduced to writing, the withdrawal during the hearing constitutes a written withdrawal. See Tomlin v. Brown, 5 Vet. App. 355 (1993) (a statement made during a personal hearing, when later reduced to writing in a transcript, constitutes a written notice of disagreement within the meaning of 38 U.S.C. § 7105). Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal as to this issue and it is dismissed. 2. Whether new or material evidence has been received to reopen a claim for service connection for a dental condition, for compensation purposes Generally, a claim that has been denied in an unappealed decision may not be reopened and allowed. 38 U.S.C. § 7105. An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156 (b). The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). The Veteran's claim for service connection for a dental condition, for compensation purposes, was previously denied. In this regard, a September 2009 rating decision, in part, denied entitlement to service connection for residuals of dental trauma (claimed as a dental condition) for compensation purposes. The Veteran did not timely file a notice of disagreement (NOD) as to this issue and no new and material evidence was received or constructively received during the appeal period as to this issue. Further, the Veteran has not argued the September 2009 rating decision is not final. Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020). Following the September 2009 rating decision, the record also reflects that service treatment records were associated with the record in April 2014. However, as to the service treatments records with a receipt date in April 2014, review of the Veterans Benefits Management System reflects these records were uploaded in April 2014, and this date thus appears to be associated the scanning date rather than the date of receipt of these records. Further, the September 2009 rating decision rating decision explicitly referenced review of the Veteran's service treatment records dated from June 2000 to July 2005. The September 2009 rating decision also explicitly found the Veteran's service treatment records showed that he was hit in the face with a rifle on September 13, 2003, broke a crown on his #9 tooth, and subsequently underwent a root canal and the tooth was restored with porcelain fused to the remaining crown. Moreover, to the extent additional service records were received after September 2009 rating decision, these records are not relevant as they do not address factual issue that was dispositive against the Veteran in the September 2009 rating decision. Kisor v. McDonough, 995 F.3d 1347 (Fed. Cir. 2021). Indeed, the September 2009 rating decision conceded the Veteran had an in-service dental injury. Thus, the September 2009 rating decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Following the final September 2009 rating decision, in April 2014, the Veteran filed a claim to reopen entitlement to service connection for a dental condition, for compensation purposes, which was denied in a June 2014 rating decision. The Veteran did not timely file a NOD as to this issue and no new and material evidence was received or constructively received during the appeal period as to this issue. Further, the Veteran has not argued the June 2014 rating decision is not final. Lang, 971 F.3d at 1355. Thus, the June 2014 rating decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. New evidence associated with the record since the final June 2014 rating decision includes additional VA treatment records, a February 2018 gulf war general medical examination disability benefits questionnaire, a February 2018 intestinal conditions disability benefits questionnaire, and February 2018 posttraumatic stress disorder disability benefits questionnaire as well as additional statements and May 2021 testimony from the Veteran. The June 2014 rating decision denied the appeal to reopen the claim, in part, as the VA medical records reviewed in connection with the current claim did not constitute new and material evidence because these records were essentially duplicative of evidence previously reviewed and considered. The June 2014 rating decision also noted the Veteran received treatment for his tooth during military service but there was no current medical evidence showing the Veteran had a loss of tooth due to a loss of substance of body of the maxilla or mandible. In this regard, dental disabilities which 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, loss of the maxilla, nonunion or malunion of the maxilla, 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 and not to the loss of the alveolar process as a result of periodontal disease. 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. Furthermore, dental conditions such as 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 but will not be considered for compensation. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150. Here, the additional medical evidence since the June 2014 rating decision, to include additional VA treatment records, and February 2018 disability benefits questionnaires, does not reflect the Veteran has a qualifying dental condition, to include disability of maxilla or mandible. This was the same exact basis for the prior denial in the June 2014 rating decision. Thus, the new medical evidence does not relate to an unestablished fact necessary to substantiate the claim for service connection. Additionally, a March 2018 NOD noted, in part, the Veteran believed that his dental issues started in the military, and had continued thereafter and worsened. In an October 2018 VA Form 9, substantive appeal, the Veteran reported that he lost actual teeth, which are bone, and that he had a cyst in his face to due to bacteria from face trauma in theatre (Kuwait/Iraq) that had to be removed in 2013 by surgery, and the VA dentist expressed that this was due to trauma 10 years earlier. In May 2021 testimony, the Veteran also reported during his active service, a recoil of a weapon hit him in the face and cracked his tooth, and in theater, he went to a dentist, and received a cap over the broken tooth, which broke off a few months later, and he had to get another repair. He further testified, that when he got home, his tooth required additional treatment, to include a root canal. He also testified that 10 years later, in 2013, he had a cyst in his face removed, and the dentist said it was from face trauma, and that the size of the cyst was consistent with the number of years that had gone by since the first incident in theater. The Veteran also testified that he did not file a claim for the cyst removal because it was removed and did not result in loss of bone; however, he again reiterated he lost teeth which were made of bone. The Veteran's additional lay statements and hearing testimony regarding his in-service dental trauma and subsequent treatment are cumulative, and not new, evidence as his in-service dental trauma was established previously. Specifically, as discussed, the September 2009 rating decision, which addressed the claim on the merits, explicitly found the Veteran's service treatment records showed that he was hit in the face with a rifle on September 13, 2003 and broke a crown on his #9 tooth and subsequently received treatment. Bostain v. West, 11 Vet. App. 124 (1998) (lay hearing testimony that is cumulative of previous contentions considered by decision maker at time of prior final disallowance of the claim is not new evidence). See also Reid v. Derwinski, 2 Vet. App. 312, 315 (1992); Untalan v. Nicholson, 20 Vet. App. 467 (2006) (New arguments based on the same evidence of record at the time of the previous final denial do not constitute the presentation of new and material evidence). Further, as to the Veteran's argument regarding a cyst in his face, he also testified that the removal of the cyst did not result in loss of bone. Moreover, his cyst was of record at the time of the June 2014 rating decision as January 2014 VA treatment records, associated with the record in April 2014 prior to the issuance of the April 2014 rating decision, documented a diagnosis of a periapical odontogenic cyst and noted it was more likely than not related to his original injury while on active duty. Thus, the Veteran's assertions, including in May 2021 testimony, are cumulative of his previous evidence of in-service dental trauma. This additional evidence does not raise a reasonable possibility of substantiating the claim. Further, as discussed above, the Veteran argued that teeth are bone, and thus, qualify as a dental disability for VA purposes; however, as discussed above, the dental disabilities which may be awarded compensable disability ratings are set forth under 38 C.F.R. § 4.150 and loss of teeth is only available when the loss of teeth is due to the loss of substance of the body of the maxilla or mandible. The evidence does not reflect the Veteran has loss of teeth due to the loss of substance of the body of the maxilla or mandible. In this regard, the Board is bound by the applicable law and regulations as written and compensation for loss of teeth without as due to the loss of substance of the body of the maxilla or mandible is not authorized. See 38 U.S.C. § 7104 (c). Thus, as discussed above, the newly received evidence does not, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the claim for service connection for a dental condition for compensation purposes. In particular, there is no newly received evidence of a qualifying dental condition for VA purposes. The evidence does not otherwise substantiate any other element of service connection that was not already substantiated at the time of the prior final decision. Accordingly, the evidence received since the denial of the claim in June 2014 is not new and material, and reopening of the claim for service connection for a dental condition, for compensation purposes, is not warranted. Accordingly, for the reasons stated above, and even considering the low threshold standard outlined pursuant to Shade, the Board finds that new and material evidence has not been received, and thus the claim for service connection for service connection for a dental condition, for compensation purposes, may not be reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Espinoza, 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.