Citation Nr: 21073958 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 20-07 767 DATE: December 13, 2021 ORDER Entitlement to service connection for a dental disorder for compensation purposes is denied. REMANDED Entitlement to service connection for a dental disability for the purpose of obtaining VA outpatient treatment is remanded. Entitlement to service connection for bilateral pes planus is remanded. Entitlement to service connection for left foot hallux valgus is remanded. Entitlement to service connection for right foot hallux valgus is remanded. Entitlement to service connection for umbilical hernia is remanded. Entitlement to service connection for a gastrointestinal disorder, to include gastrointestinal bleeding of the stomach, is remanded. FINDINGS OF FACT 1. The Veteran lost tooth 28 during service. 2. The Veteran damaged tooth 8 during service. 3. A dental disorder was not the result of service trauma or a chronic or systemic disease with loss of substance of the mandible and/or maxilla bone. CONCLUSION OF LAW 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 FINDINGS AND CONCLUSION The Veteran served on active duty from October 1984 to October 1987. He also served in the Marine Reserves from October 1989 to October 1990 and Army Reserves from August 1998 to August 2000. This matter comes to the Board of Veterans' Appeals (Board) from a February 2019 rating decision issued by the Agency of Original Jurisdiction (AOJ). In July 2020, the Veteran's case was received at the Board. 1. Entitlement to service connection for a dental disorder for compensation purposes. The Veteran contends teeth numbers 3, 4, 8, 18, and 30 should be service-connected for VA outpatient treatment or compensation purposes. See March 2005 Statement in Support of Claim; February 2020 VA Form 9. 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, 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 maxilla (upper jaw) and mandible (lower jaw) 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 entrance examination for active service in the Marines (October 1984 to October 1987), he was found to have left and right hallux valgus (bunions), small umbilical hernia, and bilateral pes planus (flat feet); the military doctor who conducted the examination not they were not disabling. See June 1984 Report of Medical Examination at 1, 2. The examination included a questionnaire that asked the Veteran to describe his health condition; he expressed he is in good health. See June 1984, Report of Medical Examination at 1. He also checked "no" to questions aimed at identifying stomach, foot, and dental problems. Specifically, he checked "no" to questions asking if he observed painful joints, foot trouble, frequent indigestion, stomach trouble, and bone, joint, or other deformity. Id. He also checked "no" to tooth or gum trouble. The military dentist who conducted the Veteran's initial dental examination did not note any missing teeth or dental disorders. See October 1984 Dental Health Record, Section I. A December 1986 service dental record shows the Veteran complained of a loose tooth on the lower right jaw. The record does not indicate the cause of the loose tooth. The military dentist advised the Veteran he could probably remove it on his own; The Veteran agreed to return to the dental clinic in five days if he could not remove the tooth on his own. See Dental Health Record, Part 17. Services Rendered. There is no record the Veteran returned for help with removing a loose tooth. The dentist's notes are not clear which tooth was loose, but the Veteran's dental chart shows tooth 28 was supposed to be extracted. The Board notes more recent service dental records show tooth 28 was no longer present. The Veteran's active service in a Marine infantry unit included travel abroad amounting to one year sea service and six months foreign service. See DD214. He asserts that during part of his foreign service he broke tooth 8 in a basketball game. See February 2020 VA Form 9. There are no records showing medical complaints of damage to any tooth during a basketball game. There are medical complaints of injuries incurred during sporting events, like knee pain and cut on his finger. See July 14, 1986, Record (noting complaint of right knee pain while wrestling); January 26, 1987 (noting complaint of cut on his ring finger while playing basketball). Although medical complaints referencing a broken tooth are not found in the Veteran's service record, his dental treatment records show a composite resin was applied to tooth 8 in April 1987. See Dental Health Record, Part 17. Services Rendered. His dental charts also show a crown may have been placed on tooth 8. There is no record it was extracted during active service. During an August 1987 dental examination, the Veteran reported general discomfort. The military dentist noted teeth numbers 6, 11, 22, and 27 were impacted. See August 11, 1987 Service Dental Record. An impacted tooth is one that is prevented from breaking through the gums by a physical barrier. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1908 (33rd ed. 2020). The dentist also diagnosed periodontal disease. Even though the visit was close to the date of his separation (October 1987), his DD214 notes all appropriate dental services were complete within 90 days of leaving active service. Following active service, the Veteran joined the Marines Reserves (October 1989 to October 1990). During his August 1989 entrance examination, he completed another medical questionnaire asking if he observed any tooth problems; he checked "no." See August 1989 Report of Medical History at 1. His Marine Reserves entrance examination does not note any dental problems. See August 1989 Report of Medical Examination. The medical records associated with his service in the Reserves do not include references to dental problems. Following service in the Marine Reserves, the Veteran joined the Army Reserves (August 1998 to August 2000). During his July 1998 entrance examination, he reported he had orthodontic surgery. The military doctor who evaluated the Veteran's report noted orthodontic surgery was performed around the time of the examination. The doctor also noted "no sequalae," indicating there were no current effects from the surgery. The Veteran's case file includes a private dental treatment record showing he had a root canal and crown placed on tooth 17 in May 2004. The record does not show the reasons the dental treatment was provided. The case file also includes a March 2005 statement indicating he sought unspecified VA benefits for teeth numbers 3, 4, 18, and 30. See March 2005 Statement in Support of Claim. In a February 2020 statement, he elaborated on the scope of his dental claim. He discussed damage to tooth 8 and an in-service diagnosis of periodontal disease. See VA Form 9. He did not mention any other dental disorder, like chronic osteomyelitis, bone loss of the upper or lower jaw, or lost or missing teeth. Turning to the Veteran's dental claim, the Board will first address the whether the record raises a claim for compensation. This is because a dental disability claim is viewed as a claim for compensation and a claim for VA outpatient dental treatment benefits. Mays, 5 Vet. App. at 306. After reviewing the record, the Board finds the compensable rating that may apply to the Veteran's dental claim is DC 9913. While actively serving in the Marines, the Veteran lost tooth 28, damaged tooth 8, and was diagnosed with periodontal disease. Compensation is available for certain types of dental and oral conditions, which do not include the type of damage described to tooth 8 and periodontal disease. 38 C.F.R. § 4.150. But § 4.150 applies to claims for loss of teeth. Under DC 9913, the Veteran must have lost the tooth due to bone loss of the maxilla (upper jaw) and/or lower mandible (lower jaw). Also, the bone loss must have been due to certain diseases that do not include periodontal disease. Even though the Veteran has not been clear about whether or not he lost any teeth during service, the evidence supports findings he lost tooth 28. Although the Veteran has provided lay statements indicating teeth numbers 3, 4, 8, 18, and 30 became problematic due to active service, his service dental records do not show any tooth was extracted during service. See March 2005 Statement in Support of Claim; February 2020 VA Form 9. Because dental treatment records tend to show the extent of dental services provided to a servicemember, the Board finds them credible towards identifying the scope of dental services provided to the Veteran. Given that his service dental records also appear to be complete, they were assigned great weight towards finding he lost one tooth during service; that is, tooth 28. The Veteran's service dental records weigh against finding he lost tooth 28 due to bone loss of the upper or lower jaw. Although his service dental records do not indicate the reason tooth 28 was loose, there is no indication it was due to bone loss of the jaw. Nor do his service records indicate tooth 28 was loose due to trauma. Given that he reported other dental problems, like general discomfort, the Board finds it is likely he would have reported signs of bone loss of the jaw or service trauma. See August 1987 Dental Record (noting report of general discomfort). Even if a disease causing bone loss of the jaw manifested after the loss of tooth 28, the Board finds it is likely that references to such a disease would have been noted in subsequent dental treatment records. So, the lack of reference to disease or trauma causing bone loss of the jaw a factor that weighs strongly against the Veteran's dental compensation claim. If there is a question about the Board's interpretation of the notes and terminology found in his service dental records, the Veteran's February 2020 statement supports the Board's finding. He has personal knowledge of whether he lost a tooth during service and, if due to trauma, the circumstances that led to the loss of the tooth. So, he is competent to report it. Layno v. Brown, 6 Vet. App. 465, 469 (1994). When he elaborated on the scope of his dental claim, he did not assert he lost any teeth; instead, he clearly stated he broke tooth 8. See February 2020 VA Form 9 (reporting he was diagnosed with periodontal disease and broke tooth 8 during a basketball game).Given that it is clear to the Board his statement was intended to provide an account of dental disabilities he believed warranted treatment or compensation, the Board finds it is likely he would have reported the loss of teeth due to trauma or disease. So, the Board finds the lack of reference to the loss of teeth a factor that weighs against finding he lost any teeth due to service trauma or a disease contemplated by DC 9913. The Board recognizes the Veteran asserted tooth 8 was damaged during service. As noted, the damage he described does not meet the criteria required by any DC under 38 C.F.R. § 4.150 that allows for the payment of VA compensation benefits. Even though a broken tooth could result in the loss of the tooth, his service dental records show that was not the case here. Those records indicate it was treated with a composite resin and/or placement of a crown. Also, based on one of the Veteran's recent statements, tooth 8 is still present. See February 2020 VA Form 9. The Board also 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 without an examination. A VA 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 medical evidence shows the Veteran did not lose the teeth referenced in the Veteran's dental claim (teeth numbers 3, 4, 8, 18, and 30), Although he lost tooth 28, the credible service dental records show it was not due to bone loss caused by trauma or disease. Nor has he asserted the loss of tooth 28 led to the development of a dental disorder. Given that the Veteran has not provided any reason to question the available dental records, the Board finds obtaining a medical opinion is not needed to decide the claim at this time. The Board notes that even if the Veteran contends periodontal disease was the cause of the loss of tooth 28, 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 compensation purposes. 38 U.S.C. § 1712; 38 C.F.R. § 3.381. In this case, the evidence weighs strongly against finding the Veteran lost a tooth due to bone loss of the jaw due to service trauma or disease. In light of the evidence, the Board concludes the Veteran has not demonstrated he meets the criteria DC 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 a compensable rating 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. 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 3, 4, 8, 18, 28, and 30, the Board finds he was seeking service connection for VA outpatient dental treatment benefits when he filed his January 2019 dental claim. 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 of the Veteran's outpatient dental treatment claim. 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 needed repairs to teeth numbers 3, 4, 8, 18, and 30, that may be due to periodontal disease. See March 2005 Statement in Support of Claim; February 2020 VA Form 9. Given that periodontal disease is 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. 2. Entitlement to service connection for bilateral pes planus, umbilical hernia, and left and right hallux valgus are remanded. The Veteran's claims must be remanded for medical opinions before it is able to decide on their merits. 38 U.S.C. § 5103A(d)(2). The record reflects the Veteran entered service with bilateral pes planus (flatfeet), left and right hallux valgus (bunions), and a small umbilical hernia. See June 1984, Report of Medical Examination at 1, 2. Given that the Board is not qualified to decide whether those disabilities were aggravated by the Veteran's service, medical opinions are needed to evaluate and decide the claims. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, a remand is warranted to evaluate whether the Veteran's bilateral flatfeet, umbilical hernia, left, and right bunions were aggravated by his active service. 3. Entitlement to service connection for a gastrointestinal disorder, to include gastrointestinal bleeding of the stomach, is remanded. The Veteran's claim must be remanded for a medical opinion before it is able to decide on the merits. 38 U.S.C. § 5103A(d)(2). He has provided service treatment records showing medical complaints of gastrointestinal problems. See August 25, 1986, Record (noting complaint of stomach cramps, diarrhea, and diagnosis of gastritis). He has also provided post-service medical records showing gastrointestinal bleeding, which he contends is related to service. Because the Board is not qualified to decide whether the in-service and post-service symptoms are related, a medical opinion is needed to evaluate and decide the claim. McLendon, 20 Vet. App. at 81. Accordingly, a remand is warranted to evaluate whether his current gastrointestinal symptoms are related to active service. The matters are REMANDED for the following action: 1. 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 2. Schedule the Veteran for a VA examination for his bilateral pes planus. The examiner must review the claims file. The examiner is asked to provide a response to the following: a. Is it "undebatable" or "absolutely certain" that the Veteran's bilateral pes planus existed before entering his period of active duty service? The Veteran's active service period is from October 1984 to October 1987. b. If the Veteran's bilateral pes planus preexisted service, the examiner should state whether it is "undebatable" or "absolutely certain" that there was no increase in severity during service? c. If there was an increase in severity of the Veteran's bilateral pes planus during active service, is it "undebatable" or "absolutely certain" that any increase in disability was due to the natural progress of the disability? d. If the examiner is not absolutely certain that the Veteran's bilateral pes planus preexisted service, is it at least as likely as not (50 percent or greater probability) that his pes planus is related to his active service? The Veteran's active service period is from October 1984 to October 1987. Provide a rationale to support the opinion(s). The examiner, in coming to his or her conclusion, is asked to comment on the following: i. Consider that the Veteran reported he withheld reports of neck and shoulder pain during service because it was not part of the infantry culture to complain about pain. Is there any medical reason to accept or reject the proposition that he would have been able to perform the physical activities of an infantry Marine if his bilateral pes planus had worsened during active service? ii. Discuss the August 1989 entrance examination for the Marines Reserves that do not note bilateral pes planus. iii. Discuss the July 1998 entrance examination for the Army Reserves that found mild pes planus. 3. Schedule the Veteran for a VA examination for umbilical hernia. 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 opinion(s) below. The examiner is asked to provide a response to the following: a. Is it "undebatable" or "absolutely certain" that the Veteran had an umbilical hernia before entering active service? The Veteran's active service period is from October 1984 to October 1987. b. If the Veteran's umbilical hernia preexisted service, the examiner should state whether it is "undebatable" or "absolutely certain" that there was no increase in severity during service? c. If there was an increase in severity of the Veteran's umbilical hernia during service, is it "undebatable" or "absolutely certain" that any increase in disability was due to the natural progress of the disability? d. If the examiner is not absolutely certain that the Veteran's umbilical hernia preexisted service, is it at least as likely as not (50 percent probability or more) that his umbilical hernia is related to his active service? Provide a rationale to support the opinion(s). 4. Schedule the Veteran for a VA examination for his left and right hallux valgus. The examiner must review the claims file. The examiner is asked to provide a response to the following: a. Is it "undebatable" or "absolutely certain" that the Veteran's left hallux valgus existed before entering his period of active duty service? The Veteran's active service period is from October 1984 to October 1987. b. If the Veteran's left hallux valgus preexisted service, the examiner should state whether it is "undebatable" or "absolutely certain" that there was no increase in severity during service? c. Is it "undebatable" or "absolutely certain" that the Veteran's right hallux valgus existed before entering his period of active duty service? d. If the Veteran's right hallux valgus preexisted service, the examiner should state whether it is "undebatable" or "absolutely certain" that there was no increase in severity during service? e. If there was an increase in severity of the Veteran's left and/or right hallux valgus during active service, is it "undebatable" or "absolutely certain" that any increase in severity was due to the natural progress of the disability? If the examiner is not absolutely certain that the Veteran's left or right hallux valgus preexisted service, is it at least as likely as not (50 percent or greater probability) that the hallux valgus is related to his active service? Provide a rationale to support the opinion(s). The examiner, in coming to his or her conclusion, is asked to comment on the following: i. Consider that the Veteran reported he withheld reports of neck and shoulder pain during service because it was not part of the infantry culture to complain about pain. Is there any medical reason to accept or reject the proposition that he would have been able to perform the physical activities of an infantry Marine if his left and/or right hallux valgus had worsened during active service? ii. Discuss the August 1989 entrance examination for the Marine Reserves that does not note hallux valgus. iii. Discuss the July 1998 entrance examination for the Army Reserves that does not note hallux valgus. 5. Schedule the Veteran for a VA examination for his gastrointestinal symptoms, to include gastrointestinal bleeding of the stomach. 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 opinion(s) below. The examiner is asked to provide a response to the following: a. Are the Veteran's gastrointestinal symptoms, to include gastrointestinal bleeding of the stomach, at least as likely as not (50 percent or greater probability) related to active service? The Veteran's active service period is from October 1984 to October 1987. b. Are the Veteran's gastrointestinal symptoms, to include gastrointestinal bleeding of the stomach, at least as likely as not (50 percent or greater probability) proximately due to his umbilical hernia? c. Are the Veteran's gastrointestinal symptoms, to include gastrointestinal bleeding of the stomach, at least as likely as not (50 percent or greater probability) aggravated, i.e., worsened beyond its natural progression, by his umbilical hernia? Provide a rationale to support the opinion(s). The examiner, in coming to his or her conclusion, is asked to comment on the following: i. Discuss the August 25, 1986 visit to sick-call with complaints of diarrhea and cramps lasting a day. He was diagnosed with gastritis. ii. Consider the Veteran met with a private provider for a gastrointestinal (GI) consultation following signs of blood in his stool. He denied any GI-related complaints, to include nausea, emesis, abdominal pain, and signs of GI bleeding. For reasons not explained, the provider ruled out an underlying intestinal disease. See July 2007 Gastroenterology Consultation at 1, 3. iii. Consider the July 2007 colonoscopy that found internal hemorrhoids. See July 2007 Colonoscopy Report by W.Y., MD. iv. Address the July 2008 opinion by G.S., PA, that concludes alcohol and over-the-counter medications, like ibuprofen, may be the cause of the Veteran's GI bleeding. See July 2008 Private Medical Record by G.S., PA. 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.