Citation Nr: 21066053 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 17-64 178 DATE: October 28, 2021 ORDER New and material evidence has been received to reopen a claim of entitlement to service connection for a right ankle disability and the claim is reopened; to this extent only, the appeal is granted. Service connection for a dental condition manifested by missing upper front teeth, for compensation purposes, is denied. REMANDED Service connection for a right ankle disability is remanded. Service connection for a low back disability is remanded. FINDINGS OF FACT 1. The Agency of Original Jurisdiction (AOJ) previously denied the Veteran's claim of service connection for a right ankle disability in a June 1994 rating decision. The Veteran was properly notified of this decision and he did appeal it. 2. Some of the additional evidence received since the June 1994 decision denying service connection for a right ankle disability is not cumulative or redundant of evidence already of record and considered in that decision and raises a reasonable possibility of substantiating the claim for service connection. 3. The Veteran does not have a disability of the teeth due to in-service trauma or disease resulting in loss of body of the maxilla or mandible for which service connection can be granted for compensation purposes. CONCLUSIONS OF LAW 1. The June 1994 rating decision that denied service connection for a right ankle disability is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104 (a), 20.1103. 2. New and material evidence having been received, the claim for service connection for a right ankle disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. The criteria for service connection for loss of teeth, for compensation purposes, are not met. 38 U.S.C. §§ 1110, 1131, 1712, 5107; 38 C.F.R. §§ 3.303, 3.381, 4.150. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1990 to May 1991, with additional periods of service in the Army National Guard (ARNG), including active duty training (ACDUTRA) from June 29, 1988 to September 2, 1988. This case comes to the Board of Veterans' Appeals (Board) on appeal from a decision of the AOJ dated in September 2015. The Veteran testified before the undersigned Veterans Law Judge at a July 2021 hearing; a transcript of the hearing is of record. A claim for service connection for a compensable dental disorder is also considered to be a claim for VA outpatient dental treatment. See Mays v. Brown, 5 Vet. App. 302, 306 (1993). The Board notes that because the AOJ has not adjudicated the claim of service connection for a dental condition for treatment purposes under 38 C.F.R. § 17.161, that issue is not in appellate status. In the September 2015 rating decision, the AOJ advised the Veteran to apply to the Veterans Health Administration (VHA) for service connection for a disability of the teeth for treatment purposes. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Under the law, active military service includes (1) active duty, but also (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or an injury incurred or aggravated in the line of duty, and (3) any period of INACDUTRA during which the individual concerned was disabled or died from an injury, but not disease, incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training. 38 U.S.C. § 101 (24) (B); 38 C.F.R. § 3.6 (a). As a threshold matter, "veteran" status must be established as a condition of eligibility for service connection benefits. Bowers v. Shinseki, 26 Vet. App. 201, 206 (2013). To establish status as a veteran based upon a period of ACDUTRA, a claimant must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. §§ 3.1 (a), (d); Harris v. West, 13 Vet. App. 509 (2000). For National Guard service, ACDUTRA is defined as full-time duty performed by members of the National Guard of any State under 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101 (22)(C); 38 C.F.R. § 3.6 (c)(3). INACDUTRA is defined as duty (other than full-time duty) performed by a member of the National Guard of any State under 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101 (23); 38 C.F.R. § 3.6 (d)(4). Thus, in order for National Guard service to be qualifying service for VA compensation purposes, the period of service must have been "federalized," that is to say, his unit was ordered into Federal service under 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 C.F.R. § 3.6 (c), (d). As a threshold matter, "veteran" status must be established as a condition of eligibility for service connection benefits. Bowers v. Shinseki, 26 Vet. App. 201, 206 (2013) (observing that it is "axiomatic that, to receive VA disability compensation benefits, a claimant must first establish veteran status"). 1. New and material evidence to reopen a claim of service connection for a right ankle disability The Veteran contends that his current right ankle disability, including degenerative joint disease, was incurred during annual training in the ARNG at Fort Hood in July 1992. See January 2016 notice of disagreement, and July 2021 Board hearing transcript, pages 3-5. He contends that he sprained and fractured his right ankle at Fort Hood when he landed after jumping over a canal or creek. He testified that he was treated for the injury, and after an X-ray study the next morning, he was told that he needed to have bone chips removed. He stated that over the years, the ankle disability had worsened, and he had never had the bone chips removed. In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether or not the AOJ has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239 40 (1995). A decision of the AOJ becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. 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. 38 C.F.R. § 3.156 (a). Additionally, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, then the claim will be reconsidered on the merits. 38 C.F.R. § 3.156(c). The AOJ initially denied entitlement to service connection for a right ankle disability in a June 1994 rating decision. The AOJ determined that he twisted his right ankle on July 24, 1992, apparently while assigned to Fort Hood. The condition was treated and resolved with no residuals shown on May 1993 VA examination. The AOJ noted that efforts to obtain complete service treatment records, along with active duty orders and a line of duty determination concerning the right ankle sprain were unsuccessful. The Veteran did not appeal this rating decision or submit new and material evidence within one year of that decision. Therefore, the June 1994 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 19.20, 19.21, 19.22, 19.52, 20.1103. In October 2014, the Veteran applied to reopen the claim of service connection for a right ankle disability. Evidence of record at the time of the prior final June 1994 rating decision included service treatment records showing a right ankle injury on July 24, 1992 and treatment on July 25, 1992, and a diagnosis of probable second degree ankle sprain and possible acute avulsion fracture. Evidence also included a report of a May 1993 VA examination showing a diagnosis of a history of a right ankle sprain with minimal symptoms at present. A May 1993 X-ray study showed no gross abnormality. Additional evidence received since the prior final June 1994 decision includes service personnel records and an April 1991 sick slip. These records do not relate to a right ankle condition and are not relevant to the Veteran's claim, and reconsideration under 38 C.F.R. § 3.156 (c) is not warranted. Additional evidence received since the prior final June 1994 decision includes VA and private medical records related to other conditions, and the Veteran's testimony at the July 2021 Board hearing, to the effect that he had continuous ankle symptoms since the July 1992 injury. The Board finds that some of this evidence is both new and material, specifically the Veteran's testimony, which is presumed credible. This evidence was not of record at the time of the prior final decision, and is both new and material. When considered with the evidence of record, this evidence triggers VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Thus, the claim is reopened. See Shade, supra; 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 2. Service connection for a dental condition for compensation purposes The Veteran filed an informal claim for service connection for a dental condition in June 2008, and filed claims for service connection for maxillofacial trauma and periodontal corrective surgery secondary to maxillofacial trauma in October 2014. The Veteran contends that he suffered trauma to his mouth and two front teeth during active duty as a Bradley gunner in 1990, and that he underwent dental treatment for this injury at Fort Hood in 1991. See his June 2008 informal claim, October 2014 claim, January 2016 notice of disagreement, and June 2021 Board hearing transcript. In his notice of disagreement and at the Board hearing, the Veteran stated that while he was at the National Training Center (NTC) in Fort Irwin, California, the Bradley he was in went over a large berm with a drastic drop-off on the other side. He hit his face on the periscope and broke his left front tooth and the tooth to the left of it. Once his battalion returned to Fort Hood in the spring of 1991, he had surgery to fix the two teeth. He said the dentist removed both teeth and placed silver posts into the upper jaw and then placed two porcelain teeth on the posts. Since then, he had to replace those teeth twice. At the July 2021 Board hearing, he testified that the tooth injury happened towards the end of a 30-day training at the NTC, and he was treated by a medic who stitched his upper lip. He later underwent dental surgery at Fort Hood, in which the whole tooth was removed, and two posts were implanted. Since service he had three more surgeries, most recently in 2014, because the original teeth which were implanted at Fort Hood migrated. The dental conditions for which service-connected compensation benefits are available are set forth under 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. The regulations governing dental claims make a fundamental distinction between "replaceable missing teeth" (see 38 C.F.R. § 3.381 (b)), and teeth lost as a result of loss of substance of body of maxilla or mandible due to trauma or disease such as osteomyelitis, and not loss of the alveolar process as a result of periodontal disease. See 38 C.F.R. § 4.150, Diagnostic Code 9913; Simington v. West, 11 Vet. App. 41, 44 (1998). 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 as provided in 38 C.F.R. § 17.161. 38 C.F.R. § 3.381(b). The Veteran's service treatment records are incomplete, and do not contain service dental records. The Veteran's service personnel records include his handwritten undated statement to the effect that on March 15, 1991, he suffered damage to his left front crown while at the National Training Center. He stated that on that date, he was with a task force conducting a movement to contact on the attack towards an objective. While traveling at 20 miles per hour, the driver hit a bump followed by a dip. He was scanning at the time, and hit the integrated sight unit with his front crown, causing a chip in it. A medical and dental appointment card (DA Form 3982) noted that the Veteran had an appointment scheduled on April 5, 1991. The purpose of the appointment was not listed. In an April 2016 note, the Veteran stated that to the best of his recollection, the April 1991 appointment noted on the appointment card was his first dental appointment with the dentist who performed his in-service maxillofacial surgery. Although the Veteran now contends that two front teeth were broken in the 1991 incident, in his contemporaneous 1991 statement, he said that only his left front crown was chipped. This inconsistency reduces the credibility of his current statement. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); Pond v. West, 12 Vet. App. 341 (1999). Moreover, his available service treatment records and dental records do not document any dental or oral trauma due to an injury or wound. The Veteran does not allege tooth loss due to loss of substance of the body of maxilla or mandible through trauma or disease such as osteomyelitis (e.g., an infection of the bone). After reviewing all the evidence, the Board finds that the weight of the evidence is against the claim. Claims for compensable service connection for a dental disability include a requirement that the trauma resulted in some loss of body of the maxilla or mandible. 38 C.F.R. § 4.150. This has not been demonstrated in the present case. The preponderance of the evidence is against the claim for service connection for loss of teeth, for compensation purposes. The Board acknowledges the Veteran's contentions that he lost two teeth from being hit in the mouth during active duty service, but does not find this assertion to be credible given that active duty records and his contemporaneous statement merely reflects a chip to an existing crown. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). Regardless, replaceable missing teeth is not a dental disability for which service connection may be granted. 38 C.F.R. §§ 3.381, 4.150; Simington, supra. REASONS FOR REMAND 1. Service connection for a right ankle disability is remanded. The Veteran contends that his right ankle disability had onset during ACDUTRA in the ARNG at Fort Hood in July 1992 when he incurred a right ankle sprain and fracture, and that he has had continuous right ankle symptoms including pain and popping since then. As noted by the AOJ, the Veteran's service treatment records are incomplete. The available service treatment records show that the Veteran was treated for a right ankle injury in the emergency room at Darnall Army Community Hospital (DACH) on July 24, 1992, and had been brought to the hospital by a military vehicle. On remand, the AOJ should attempt to verify the Veteran's period of active duty for training or inactive duty training on that date. Although the AOJ stated in its September 2015 rating decision that there was no evidence of a line of duty (LOD) injury determination of a right ankle condition in his service treatment records, it appears that such a determination may have been made. A July 25, 1992 service treatment record reflects a diagnostic assessment of probable second degree ankle sprain, and he was referred to DACH for an X-ray study to rule out a fracture, and for LOD. Remand is also required for a VA examination and medical opinion regarding whether any current right ankle disability is related to a period of active service. Evidence indicates that there may be outstanding relevant VA treatment records. At a May 1993 VA examination, the Veteran reported that he was treated for a right ankle injury at McAllen VA outpatient clinic in September 1992, and was then treated at San Antonio VA Medical Center (VAMC) where an X-ray was performed. Any VA treatment records are within VA's constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. 2. Service connection for a low back disability is remanded. The Veteran contends that he has had continuous low back symptoms including pain that began in service. He asserts that his current back disability is related to frequent heavy lifting during service, as well as jumping from the turret on a Bradley vehicle to the ground. The Board cannot make a fully-informed decision on the issue of service connection for a low back disability because no VA examiner has opined whether any current low back disability is related to a period of active service. During the July 2021 Board hearing, the Veteran identified relevant outstanding private treatment records. He stated that he was treated for a back disability by a private physician in Laredo about ten years ago. A remand is required to allow VA to obtain authorization and request these records. The matters are REMANDED for the following action: 1. Verify all active duty for training and inactive duty training dates for service in the Texas National Guard from January to December 1992. In particular, attempt to verify the Veteran's duty status on July 24, 1992. If necessary, a request should be made to the Defense Finance and Accounting Service (DFAS). Document all requests for information as well as all responses in the claims file. 2. Obtain the Veteran's VA treatment records for the period from July 1992 to the present. In particular, attempt to obtain medical records of treatment for a right ankle injury at McAllen VA outpatient clinic in September 1992, and any treatment records or X-ray studies from the San Antonio VAMC dated between September 1992 and May 1993. 3. Ask the Veteran to complete a VA Form 21-4142 for the private physician in Laredo who reportedly treated him in approximately 2011 for a low back disability. Make two requests for the authorized records from this physician, unless it is clear after the first request that a second request would be futile. 4. After the actions in paragraphs 1-3 have been completed, schedule the Veteran for a VA examination for claimed disabilities of the right ankle and low back. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinions below. The examiner is asked to provide a response to the following: a) Is a current right ankle disability at least as likely as not related to a period of active service, including a documented right ankle injury on July 24, 1992? b) Is a current low back disability at least as likely as not related to a period of active service, including frequent heavy lifting during service, as well as jumping from the turret on a Bradley vehicle to the ground? Provide a rationale to support the opinions. In providing the requested opinions, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? Is it at least as likely as not that arthritis of the right ankle or low back (1) began during active service, (2) manifested within one year after discharge from active service, or (3) was noted during service with continuity of the same symptomatology since service? S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. L. Wasser, 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.