Citation Nr: 21067549 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-65 972 DATE: November 4, 2021 ORDER Entitlement to service connection for periodontal disease, claimed as upper gum condition with residual speech and teeth condition (dental disability), is denied. FINDING OF FACT The preponderance of the evidence demonstrates the Veteran does not have a current dental disorder for Department of Veterans Affairs (VA) compensation purposes. CONCLUSION OF LAW The criteria for service connection for a dental disability for VA compensation purposes have not been met. 38 U.S.C. §§ 1131, 1712, 5107; 38 C.F.R. §§ 3.303, 3.381, 4.150. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1975 to May 1982. This matter comes before the Board of Veterans' Appeals (Board) from an April 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file and has been reviewed. As an initial matter, the Board notes that a claim of service connection for a dental condition for compensation purposes may also be a claim for VA outpatient dental treatment under 38 C.F.R. § 3.381. Mays v. Brown, 5 Vet. App. 302 (1993). In dental claims, the RO adjudicates the service connection claim for compensation purposes, and the VA Medical Center (VAMC) adjudicates the claim for outpatient treatment. As the Veteran's claim stems from an adverse determination by the RO, the appeal is limited to the issue of service connection for a dental condition for compensation purposes. Nonetheless, the record indicates that the Veteran sought and received VA dental treatment in March 2017, where he was examined and scheduled to proceed with dental care at the Loma Linda VAMC. If the Veteran has not received notice of a determination, or the Veteran is otherwise unclear as to his status for VA outpatient dental treatment under 38 C.F.R. § 3.381, the Veteran is advised to follow up with the appropriate VAMC or the RO regarding the issue of service connection for a dental disability for treatment purposes. Accordingly, the Board's decision in this appeal is limited to whether VA compensation is warranted for dental disability. Service Connection Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, service connection may also be granted on the basis of a post-service initial diagnosis of a disease when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Importantly, the Veteran bears the burden of presenting and supporting his claim for benefits. See 38 U.S.C. § 5107(a). In its evaluation, the Board considers all information and lay and medical evidence of record. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for a dental condition The Veteran contends that the residual conditions of dental surgery (specifically, surgical after care) while in service led to his eventual tooth loss, improper spacing of his teeth and speech problems. See Notice of Disagreement (NOD), June 2017 (the Veteran contends that since he had dental surgery in service, "[t]herefore, it is as least as likely as not incurred in...service."); VA Form 9, October 2017 (claims the Army destroyed his gum and upper pallet and he cannot speak right since service); Hearing Transcript, July 2021 (surgical procedure in service damaged or loosened teeth causing premature loss of teeth). Service connection for compensation purposes may be provided only for certain limited specified types of service-connected dental disorders. 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, 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, and loss of teeth due to the loss of substance of the body of the maxilla or mandible without loss of continuity. 38 C.F.R. § 4.150, Diagnostic Codes 9900, 9916. Diagnostic Code 9913 applies to dental service connection claims involving teeth. The loss of teeth must be due to loss of substance of body of maxilla or mandible caused by trauma or osteomyelitis. 38 C.F.R. § 4.150, Diagnostic Code 9913. Important in this claim, loss of the alveolar process as a result of periodontal disease is not considered disabling. Id. The Veteran's service treatment records show that he received dental treatment during service, including extraction of his wisdom teeth in September 1978. A surgical clinical record from September 1978 shows the impacted teeth were extracted and no abnormal findings were noted after the procedure. Tellingly, after care treatment notes indicate there was small amount of bleeding in extraction area #17 after surgery and the examiner reported that the Veteran received a pressure pack to the affected area and reassurance, as he was otherwise progressing well. The remainder of the service treatment records fail to disclose any additional complaints of or findings pertaining to his claimed dental conditions. The Veteran was provided a VA examination for oral and dental conditions including mouth, lips, and tongue in April 2017. The Veteran was diagnosed with loss of teeth due to periodontal disease. Regarding dental and oral conditions, the examiner found that the Veteran did not have anatomical loss or bony injury of the mandible or maxilla; anatomical loss or injury of the mouth, lips, or tongue; disfiguring scars to the mouth of lips; osteomyelitis, osteoradionecrosis, or osteonecrosis of the jaw; tumors; or neoplasms. The examiner found that the Veteran's tooth loss is not due to loss of substance of body of maxilla or mandible without loss of continuity. The examiner found that the Veteran's tooth loss is not due to trauma or disease. Moreover, the examiner found that the Veteran does not have anatomical loss or bony injury of any teeth other than due to the loss of the alveolar process as a result of periodontal disease. Tellingly, after recording the history of the Veteran's claimed conditions as he related it to be due to the surgical procedure and dental care in service, the examiner nonetheless opined that the claimed upper gum condition is due to his periodontal disease (i.e., not due to his in-service surgical procedure). The Board finds the April 2017 VA opinion the most probative evidence of record because it is provided after a review of the record on appeal and an examination of the Veteran as well as because it is supported by the evidence found in the record including the Veteran's lay statements and controlling medical principles. Also, at this time, this opinion is not contradicted by any other medical evidence of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Therefore, the Board finds that it is the most probative evidence of record. After careful and thorough consideration of the evidence, the Board finds that the Veteran's claimed dental conditions are not recognized for service connection purposes. The Veteran has not identified any competent, credible, or probative evidence to support an in-service injury or trauma to his teeth. The preponderance of the evidence does not show that the Veteran currently has any dental conditions identified in DC 9900 and 9916 or that his claimed dental conditions were due to trauma or a disease such as osteomyelitis. The Board has also considered the Veteran's contentions regarding dental surgery and after care while in service that he claims led to tooth loss, improper spacing and speech problems. However, where the determinative issue involves causation or a medical diagnosis, competent medical evidence to the effect that the claim is possible or plausible is required. The Veteran does not meet this burden by merely presenting his lay opinion because such evidence does not constitute competent medical authority in this claim. The only evidence of record linking the claimed dental disability to service is the Veteran's own assertions. The Veteran has not been shown to have the requisite medical training to opine as to the diagnosis or the etiology of the claimed condition. He is clearly asserting a fact that is beyond his competence to do so. The Veteran's statements, standing on their own, are insufficient upon which to establish a (causal) relationship between his current disability and a period of active service. It is important for the Veteran to understand that the medical findings provide highly probative evidence against the claim that the Board cannot, unfortunately, ignore. These findings provide a clear basis for the opinion against the Veteran's claim. Here, the evidence does not show a condition recognized under 38 C.F.R. § 4.150 that can be associated with the Veteran's service. As to direct service connection, a diagnosis for a compensable dental condition would still be required. Unfortunately, as discussed in detail above, the medical evidence does not reveal a dental disorder for which compensation is payable. See 38 C.F.R. § 4.150. (Continued on the next page) Accordingly, the claim of entitlement to service connection for a dental disability is denied. In reaching the above conclusions the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim for service connection for a dental condition, that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Davidson 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.