Citation Nr: 21073692 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 15-30 255 DATE: December 10, 2021 ORDER Entitlement to service connection for a dental condition, claimed as pulled lower left second molar, is denied. Entitlement to special monthly compensation (SMC), based on the need for regular aid and attendance of another person is denied. REMANDED Entitlement to total disability based on individual unemployability (TDIU) prior to April 16, 2019 is remanded. FINDINGS OF FACT 1. The Veteran's dental disorder, claimed as pulled lower left second molar, is not considered a disability for Department of Veterans Affairs (VA) compensation purposes. 2. The Veteran's service-connected disabilities have not been shown to render her bedridden, confined to her immediate premises, or unable to care for her daily needs without requiring the regular aid and attendance of another person. CONCLUSIONS OF LAW 1. The criteria for service connection for a dental disorder for compensation purposes are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.381, 4.150. 2. The criteria for SMC based on the need for aid and attendance of another person are not met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.350, 3.351, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2006 to June 2011. These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2014 and September 2015 rating decisions issued by a VA Regional Office (RO). These matters were previously before the Board in November 2018 and February 2021 and were remanded for additional development. The case is once again before the Board. Entitlement to service connection for a dental condition For VA compensation purposes, service connection is only available for the following dental and oral conditions: chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible; loss of the mandible, whole or in part; malunion or nonunion of the mandible; limitation of motion of the temporomandibular articulation; loss of the ramus, whole or in part; loss of the coronoid process, unilaterally or bilaterally; loss of the hard palate, whole or in part; loss of teeth due to the loss of substance of the body of the maxilla or mandible; loss of the maxilla, whole or in part; or malunion or nonunion of the maxilla. 38 C.F.R. § 4.150, Diagnostic Codes (DCs) 9900 through 9916. Generally, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses and periodontal disease are not compensable disabilities. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381(b), 4.150. With respect to the loss of teeth specifically, the Note associated with DC 9913 provides that compensation is only available for loss of teeth if there is bone loss through trauma or disease such as osteomyelitis, and not to the loss of the alveolar process as a result of periodontal disease, since that is not considered to be disabling. At an April 2019 VA dental examination, the Veteran reported that while in service, she was eating a peppermint and her tooth broke causing it to be subsequently extracted. The examiner stated that he could not find records of the events to corroborate the incident or extraction but found the Veteran did not have bone loss due to trauma or disease. The examiner noted that there was bone loss in the tooth #19 site, but it was normal alveolar loss of bone, consistent with normal healing. Additionally, the examiner stated there were no symptoms associated with that missing tooth. In February 2021, the Board remanded the claim for a supplemental opinion, finding the prior Board remand directed the examiner to an incorrect medical note related to the Veteran's dental treatment and an opinion was needed on a complete review of the Veteran's medical history. In June 2021, pursuant to the Board remand, the Veteran underwent an additional VA examination. The examiner found the Veteran's tooth extraction did not demonstrate bone loss consistent with trauma or disease. Instead, the bone loss demonstrated normal atrophy consistent with an extraction, which is consistent with the Veteran's statements that her tooth was extracted in the field. The examiner found no written notes describing the extraction but noted April 2007 notes indicated the Veteran received endodontic treatment on tooth #19 prior to its extraction. Thus, based on the above, service connection for a dental disability must be denied. The competent evidence of record does not indicate either loss of substance of the maxilla or mandible, loss of teeth due to the loss of substance of the body of the maxilla or mandible, or any other dental disability for which service connection and compensation may be awarded. The Board recognizes that the Veteran is competent to provide evidence regarding the lay observable symptoms associated with her claimed dental disability. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). However, she is not competent to render a medical diagnosis of the loss of bone due to trauma or disease, or an opinion on such a complex matter as the necessity of a course of treatment. Id. The preponderance of the evidence does not establish a current dental disability eligible for VA compensation purposes. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that in cases where the law and not the evidence is dispositive, the claim should be denied because the absence of legal merit or lack of entitlement under the law). Therefore, service connection for a dental disability must be denied. Entitlement to SMC based on the need for aid and attendance In July 2015, the Veteran submitted a claim for SMC generally. Historically, the claim was denied in a September 2015 rating decision. The Veteran appealed that decision and a statement of the case laying out the elements necessary to substantiate a claim for SMC based on housebound criteria and/or the need for aid and attendance was issued in November 2015. The Veteran perfected an appeal and in a November 2018 Board decision, entitlement to SMC based on aid and attendance was remanded for further development. Subsequently, the Veteran was granted SMC based on housebound criteria being met, effective April 16, 2019. The RO considered this a total grant of the issue of SMC and did not issue a supplemental statement of the case. In this regard, the RO considered all the evidence of record and since the April 2020 rating decision, no pertinent or relevant evidence has been added to the record. In a May 2020 notification letter, the Veteran and her attorney were provided notice that it was considered a full grant. Notwithstanding the lack of a supplemental statement of the case, the Veteran was given a meaningful opportunity to effectively participate in the adjudication of this claim; thus, there is not prejudice to her in proceeding with the adjudication of the claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007). SMC based on the need for aid and attendance is warranted if a Veteran, as the result of service-connected disability, is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). The following will be accorded consideration in determining the need for regular aid and attendance: inability of claimant to dress or undress himself/herself, or to keep himself/herself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed himself/herself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to their daily environment. 38 C.F.R. § 3.352(a). It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. The particular personal functions which the Veteran is unable to perform should be considered in connection with their condition as a whole. It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Id. The Veteran has also not asserted, and none of the medical evidence of record suggests, that her service-connected disabilities have resulted in loss of use of both feet, one hand and one foot, blindness in both eyes with visual acuity of 5/200 or less, or rendered the Veteran permanently bedridden. In a July 2015 unsigned VA form 21-2680, examination for housebound status or permanent need for aid and attendance, the Veteran indicated that she could: feed herself, prepare her own meals, bathe herself without assistance, was not legally blind, did not require nursing care, and could manage her financial affairs. She did indicate that she could not manage her medications, but did not provide an explanation. With regard to the remaining criteria for a claim for SMC to prevail, the Board finds that the Veteran's service-connected disabilities do not result in the need for regular aid and attendance of another person. The probative evidence is against a finding that the Veteran's service-connected disabilities would cause the Veteran to be unable to dress or undress herself, to keep herself ordinarily clean and presentable, cause frequent need to adjust special prosthetic or orthopedic appliances, or present as an inability to feed herself or attend to wants of nature. Additionally, her service-connected disabilities do not result in incapacity, physical or mental, requiring care or assistance on a regular basis to protect a claimant from the hazards or dangers incident to her daily environment. In contrast, the record demonstrates the Veteran takes care of herself and her four children, one of which has special needs. In April 2019, she described taking her children to Disney World for vacation. Additionally, the Veteran started her own business designing children's clothing and graphic t-shirts. See April 2019 VA posttraumatic stress disorder (PTSD) examination. These activities demonstrate the Veteran not only takes care of herself, but also supports her family and takes care of her children's needs. Moreover, there are no opinions or statements that indicate a level of impairment resulting in the need for aid and attendance. For these reasons, the Board finds that the evidence does not support a finding that the Veteran's service-connected disabilities causes her to require regular aid and attendance within the meaning of the regulation. When considering the Veteran's service-connected disabilities, alone, the impairment shown does not meet the criteria for SMC based on the need for aid and attendance. For the reasons set forth above, the preponderance of the evidence is against an award of special monthly compensation pursuant to 38 U.S.C. § 1114(l) and 38 C.F.R. § 3.350(b). There is no doubt to be resolved; entitlement to SMC based on the need of regular aid and attendance of another person is not warranted. REASONS FOR REMAND In July 2015, the Veteran indicated that she was unable to work due to her service-connected diabetes. See July 2015 VA Form 8940, Application for increased compensation based on unemployability. During the pendency of the appeal, the Veteran was granted service connection for PTSD at 100 percent effective April 16, 2019. She is also in receipt of SMC at the housebound rate from that date. Thus, the issue before the Board is entitlement to TDIU prior to April 16, 2019. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); see also Bradley v. Peake, 22 Vet. App. 280 (2008). In the Veteran's July 2015 application for TDIU, she stated she became too disabled to work on February 1, 2015 and she last worked in a salon from September 2014 to November 2014. The Veteran made additional statements indicating that work was an internship related to her degree. See July 2015 VA PTSD examination. The Veteran further stated she found out she was pregnant in February 2015 and was told by her physicians that it was recommended that she not work due to dizziness, sugar levels, A1C levels and because she worked in a salon that used "different chemicals." See July 2015 VA Form 21-8940. In September 2016, the Veteran underwent a VA examination related to her diabetes. The examiner described the functional impact on her ability to work as increased fatiguability and frequently falling asleep in the middle of the day. This statement does not indicate that the Veteran was unable to maintain substantially gainful employment. However, this opinion does not address the Veteran's contention that she was unable to work between February to September 2015 due to her diabetes. The Veteran has stated that she was told it was "recommended" not to work during her pregnancy. However, there are no treatment notes in the record from a physician that indicate the Veteran was unable to or advised not to work. The record does demonstrate that the Veteran did have a high-risk pregnancy. In this regard, the Board finds an opinion is needed to determine the functional impact on the Veteran's ability to maintain substantial employment based on her education and training. Treatment records indicate the Veteran saw a private obstetrician during her pregnancy. To date, the Veteran has not submitted those records or otherwise authorized the VA to obtain those records. Since the claim is being remanded for additional development, the Veteran should be afforded an opportunity to submit, or authorize VA to obtain, her private treatment records. Additionally, there is evidence of record that the Veteran may be currently employed or was employed at various points during the appeal period. Treatment records indicate that the Veteran started her own custom apparel business. See April 2019 VA posttraumatic stress disorder examination. It is unclear how often the Veteran works or has worked, and how much income she has received. While full-time employment could preclude entitlement to a TDIU, this is not the case if the Veteran is only marginally employed. See 38 C.F.R. § 4.16(a). Thus, the RO should confirm the Veteran's employment status during the appeal. In this regard, the VA has previously requested this information. In April 2020 and February 2021, pursuant to the 2021 Board remand, the Veteran was sent letters requesting additional information related to her employment, and the Veteran did not respond to either request. Nevertheless, as the claim is being remanded for other reasons, the Veteran should be given the opportunity to provide this information. The Veteran is advised that her failure to cooperate may result in a denial of her claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street."). The matters are REMANDED for the following action: 1. Contact the Veteran to determine if there are any outstanding, relevant private treatment records. If so, undertake all appropriate development necessary to obtain the records from each private treatment provider and/or facility identified by her. 2. Arrange for an appropriate healthcare provider to review the Veteran's claims file and provide an opinion on the effect of the Veteran's service-connected diabetes over her ability to secure or follow substantial gainful employment. The VA examiner should comment on the functional effect of the Veteran's service-connected diabetes on the ability to work (disregarding the effects of any disabilities that are not service connected), indicating what functions or types of employment would be inconsistent with or would be precluded by the service-connected disabilities, and what types of employment, if any, would remain feasible despite her diabetes. A complete rationale should be provided. The examiner is asked to address the Veteran's contentions that she was unable to work from February 2015 to September 2015. If the reviewing health care provider finds that physical examination or telehealth interview of the Veteran and/or diagnostic testing is necessary, such should be accomplished. 3. Perform any required additional development with respect to the claim for a TDIU, to include ask the Veteran to submit any additional information concerning her employment history. Thereafter, if necessary, send a Request for Employment Information in Connection with a Claim for Disability Benefits (VA Form 21-4192) to the Veteran's relevant former employers. Ask that each employer fill out the form and return it to VA. Responses should be associated with the claims folder. L. BARSTOW Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.V. Palatt 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.