Citation Nr: 21074989 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 20-16 855 DATE: December 16, 2021 ORDER As new and material evidence has been received, the petition to reopen a previously denied claim for entitlement to service connection for a dental disability (broken teeth) is granted. As new and material evidence has not been received, the petition to reopen a previously denied claim for a service connection of hypertension is denied. Entitlement to service connection for dental disability (broken teeth) due to service-connected grand mal epilepsy is granted. FINDINGS OF FACT 1. In a February 2010 rating decision, the RO denied the Veteran's claims of entitlement to service connection for, in pertinent part, a dental disability and hypertension (claimed as high blood pressure). The Veteran did not perfect an appeal of this decision and new and material evidence was not received within one year of notification. 2. Since the February 2010 rating decision, additional evidence, to include an August 2021 positive VA nexus opinion, has been received that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim for service connection for a dental disability. 3. Since the February 2010 rating decision, additional evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim for service connection a hypertension has not been received. CONCLUSIONS OF LAW 1. The February 2010 rating decision denying the petition to reopen a previously denied claim for service connection of dental disability is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103. 2. As new and material evidence has not been received since the February 2010 denial, the criteria for reopening the claim for entitlement to service connection for hypertension are not met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. The criteria for service connection for a dental disability as secondary to service-connected grand mal seizures, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1955 to January 1957. The Veteran died in April 2020. The Appellant is the Veteran's surviving spouse. These matters arise from a July 2018 administrative decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board of Veterans' Appeals (Board) in June 2021 where the Board remanded for further development. The Board finds substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand gives the Veteran a right to compliance with the terms of the remand). Reopening Previously Denied Claims A finally adjudicated claim may be reopened if the claimant submits new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means 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). The provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase "raise a reasonable possibility of substantiating the claim" enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. New and material evidence sufficient to reopen the previously denied claim for entitlement to service connection for a dental disability In the February 2010 rating decision, the RO denied the Veteran's claim for service connection for a dental disability, as the evidence of record failed to show evidence of dental trauma during service and service connection had not been established for grand mal seizures. Although he was notified of the denial, the Veteran did not appeal the February 2010 rating decision. New and new and material evidence was not received within a year of the rating decision. Thus, the February 2010 rating decision is final. In the Board's June 2021 decision, the matter of a dental disability secondary to service-connected grand mal epilepsy was remanded for a medical opinion. The returned August 2021 VA opinion is the first opinion addressing secondary service connection of the Veteran's dental disability after grand mal epilepsy was granted service connection in October 2019. As such, this opinion is new and relevant to the Veteran's claim. The opinion is not redundant of previous evidence of record and raises a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156. Therefore, the Veteran's petition to reopen claim for entitlement to service connection for a dental disability is granted. 2. New and material evidence sufficient to reopen the previously denied claim for entitlement to service connection for hypertension In the February 2010 rating decision, the RO denied the Veteran's claim for service connection for hypertension, as the evidence of record failed to show evidence of the disorder during service or within a year of his active duty discharge. Although he was notified of the denial, the Veteran did not appeal the February 2010 rating decision. New and new and material evidence was not received within a year of the rating decision. Thus, the February 2010 rating decision is final. At the time of the February 2010 rating decision, the evidence of record included the Veteran's service treatment records (which are negative for evidence of the claimed disability), post-service medical evidence showing a diagnosed condition, and the Veteran's lay statements asserting service connection is warranted for the disorder. In the Board's June 2021 decision, the matter of hypertension secondary to service-connected coronary artery disease (CAD) was remanded for a medical opinion. The returned August 2021 VA opinion provided a negative nexus opinion regarding secondary service connection of the Veteran's hypertension based on his CAD, which is based on a review of the evidence and supported by medical rationale. As such, this opinion is does not raise a reasonable possibility of substantiating the claim. Even considering the Veteran's March 2012 statements essentially relating his hypertension to CAD, lay persons, such as the Veteran and the appellant, are not competent to make a conclusion regarding medical etiology or causation. Although lay persons are competent to provide opinions on some medical issues, the issue of whether hypertension is related to service-connected coronary artery disease falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The opinion obtained from the August 2021 VA forecloses the possibility that the Veteran's lay statements could raise a reasonable possibility of substantiating the claim. While the August 2021 VA opinion is new and it is relevant, it does not raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156 ("New and material evidence . . . must raise a reasonable possibility of substantiating the claim." (emphasis added). The evidence of record still lacks competent and credible evidence relating the Veteran's hypertension to his military service or to a service-connected disability. The Board finds no evidence has been received that is new and relevant that raises a reasonable possibility of substantiating the claim. Therefore, the petition to reopen entitlement to service connection for hypertension must be denied. 3. Entitlement to service connection for dental disability (broken teeth) due to service-connected grand mal epilepsy Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disability which is aggravated by a service-connected disability. In order to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) competent evidence establishing that the service-connected disability caused or aggravated the nonservice-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). Dental disabilities are rated under various Diagnostic Codes under 38 C.F.R. § 4.150. Service connection for compensation purposes is only available for certain types of dental and oral conditions, such as disabilities resulting from service trauma, including impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla. See Diagnostic Code 9913. Trauma, as defined for purposes of service-related dental disability, connotes damage caused by the application of sudden, external force, brought to bear outside a clinical setting; for these purposes, the term "service trauma" does not include the intended effects of therapy or restorative dental care and treatment provided during a Veteran's military service. 38 C.F.R. § 3.306. Further, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not disabilities for compensation purposes, but may be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment. 38 U.S.C. § 1712. Turning to the facts of this case, the Veteran contended his dental disability, claimed as broken teeth, was due to his grand mal epilepsy. Specifically, he contended that multiple seizures caused dental trauma by clenching his teeth during seizures. Review of the record establishes that the Veteran had dental disability, specifically that the Veteran has poor dentition with several missing teeth. See February 2020 SOC (favorable finding of poor dentition with several missing teeth). As such, a current disability is established. Therefore, the first element of secondary service connection is met. The Board granted service connection in October 2019 for grand mal epilepsy which caused seizures. As such, there is evidence of a service-connected disability. Therefore, the second element of secondary service connection is also met. An August 2021 VA medical opinion was obtained providing a positive nexus opinion for secondary service connection for the missing teeth due to grand mal seizures caused by epilepsy. Specifically, the examiner opined that the Veteran's claim of broken teeth from grand mal seizures is a likely sequela to the numerous seizures that he had. The examiner noted that the Veteran's records indicate severe clenching of the jaw during the seizures, which happened about every 2-3 weeks over a period of many years. Therefore, the examiner concluded that it is very likely that this clenching caused the numerous broken teeth. The Board finds that severe clenching of the jaw during the seizures qualifies as trauma outside of a clinical setting. The Board finds this opinion probative because it addresses the medical evidence of record and the Veteran's lay statements. As such, the Board finds the third element of service connection for a dental disability (broken teeth) is established. The Board notes that the evidence of record does not show loss of substance of the body of the maxilla or mandible without loss of continuity, or malunion or nonunion of the maxilla. Therefore, the Board finds that the Veteran's dental disability is not compensable. See 38 C.F.R. § 4.150. Based on the foregoing, however, the Board finds that the preponderance of the evidence establishes that the Veteran's dental disability was secondary to his service-connected grand mal epilepsy. Therefore, service connection for treatment purposes for a dental condition (claimed as broken teeth) is granted. 38 U.S.C. § 1712. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Boushehri, Darjush M. 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.