Citation Nr: 21075046 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 14-10 766A DATE: December 17, 2021 ORDER Entitlement to service connection for loss of tooth #1 & #32 for treatment purposes only is granted. REMANDED Entitlement to service connection for a dental condition other than loss of teeth #1 & #32 for treatment purposes only is remanded. FINDING OF FACT The Veteran has a service-connected noncompensable dental condition, missing teeth #1 & #32, resulting from service trauma, meeting the requirements for Class II(a) eligibility for dental treatment. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for eligibility for VA dental treatment for a noncompensable dental condition, loss of tooth #1 & #32, due to service trauma have been met. 38 U.S.C. §§ 1712, 5107; 38 C.F.R. §§ 3.102, 17.161. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1968 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented testimony at a Board hearing held before the undersigned Veterans Law Judge in May 2015. A transcript is of record. The Board remanded this matter for further development in May 2018. It has since been returned to the Board for appellate consideration. In May 2018, the Board also remanded the issues of entitlement to service connection for a left knee disability and entitlement to a compensable disability rating for residuals of right third metacarpal fracture. In a May 2020 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for left knee degenerative arthritis and granted an increased 10 percent disability rating for residuals fracture, right third metacarpal, effective from January 28, 2011, the date of the claim. Inasmuch as the Veteran indicated that he was seeking a 10 percent evaluation for the claim concerning the rating assigned for the right third metacarpal, these decisions represent a full grant of the benefits sought, and the appeals are no longer before the Board. Also in May 2018, the Board referred the issue of entitlement to service connection for a jaw disability for adjudication by the AOJ, noting that it was raised during the Veteran's May 2015 hearing. The Board further notes that while the AOJ adjudicated the present claim as one for entitlement to service connection for dental treatment purposes, the Veteran's July 2012 supplemental claim for compensation states that he would like to file a claim for, among other issues, service connection for "TBI, tinnitus, dental trauma (TMJ)." It thus appears that the Veteran intended to file a claim for service connection for his dental and jaw conditions both for purposes of compensation and treatment. Review of the claims file does not demonstrate that adjudication of this issue has yet been completed by the AOJ. The issue of entitlement to service connection for dental/oral conditions, to include temporomandibular disorder (for compensation purposes) is thus again referred to the AOJ for initial consideration and adjudication. Entitlement to service connection for missing teeth #1 & #32 for treatment purposes only is granted. The Veteran asserts that he suffered dental trauma during an in-service motor vehicle accident. Specifically, he has asserted that at the time of his accident and concussion, his jaw slammed shut and he cracked a number of teeth, including tooth #1 and # 32 on the right, that were later extracted. The Veteran's service treatment and personnel records document that he was in a motor vehicle accident in December 1969 when his motorcycle was hit by an oncoming vehicle, and that he was immediately taken to a hospital where he was assessed with a number of injuries, including concussion and multiple lacerations and contusions on his face. He remained hospitalized for several months, and was later seen at the Ann Arbor VA Hospital in order to take care of his dental work prior to discharge. An August 1970 dental record indicates that it was recommended that the Veteran have teeth #1, 32, 14, and 16 removed, and the extractions were performed in October 1970, shortly after the Veteran's separation from active service. While certain dental conditions, such as replaceable missing teeth and alveolar abscesses are not subject to service connection for compensation purposes, they may be subject to service connection for treatment purposes only if the Veteran qualifies for one of the classes of eligibility for dental treatment as set forth in 38 C.F.R. § 17.161. See 38 U.S.C. § 1712. Only Class I and Class II are potentially applicable in this case, and are discussed below. With reference to Class I, those having a service-connected compensable dental disability or condition may be authorized dental treatment as necessary to maintain oral health and masticatory function. The evidence of record, including dental X-rays and the VA examination report, do not demonstrate that the Veteran's missing teeth are due to loss of substance of the body of maxilla or mandible. While VA examination reports from May 2013, July 2019, and September 2019 include a current diagnosis of temporomandibular disorder (TMD), which is a potentially-compensable oral condition under 38 C.F.R. § 4.150, Diagnostic Code 9905, the issue of entitlement to service connection for TMD has not yet been adjudicated by the RO, and has been referred to the AOJ for initial consideration. At this time, the Veteran does not have a dental disability subject to compensable service connection pursuant to 38 C.F.R. § 4.150 and thus he does not satisfy the Class I criteria. 38 C.F.R. § 17.161(a). With reference to the Class II criteria and as relevant to the matter at hand, a veteran having a service-connected noncompensable dental condition or disability adjudicated as resulting from combat wounds or service trauma (Class II(a)) may be authorized any treatment indicated as reasonably necessary for the correction of the service-connected noncompensable condition or disability. 38 C.F.R. § 17.161(c). Replaceable missing and broken (fractured) teeth may be considered service-connected solely for the purposes of determining entitlement to dental examination or outpatient dental treatment. Simington v. West, 11 Vet. App. 41 (1998). Service trauma, as defined for purposes of dental treatment eligibility, means damage caused by the application of sudden, external force, brought to bear outside a clinical setting. It does not include the intended effects of therapy or restorative dental care and treatment provided during military service. 38 C.F.R. § 3.306(b)(1); VAOGCPREC 5-97 (1997), 62 Fed. Reg. 15,566 (1997); Nielson v. Shinseki, 607 F.3d 802 (2010) (service trauma in 38 U.S.C. § 1712(a)(1)(C) means an injury or wound produced by an external physical force during the service member's performance of military duties; this definition excludes the intended result of proper medical treatment and psychological stress not the result of malpractice). While there has been some variance in the reports by the Veteran as to the number of teeth cracked during his in-service motor vehicle accident, ranging from two to six, the Veteran has consistently reported that he had at least two teeth on the right side which were affected. The August and October 1970 dental records further demonstrate that the Veteran acquired a dental condition during service necessitating extraction of teeth #1 and #32. Pursuant to the Board's remand directives, a medical opinion was provided in July 2019, at which time the examining dentist stated that teeth #1 and #32 were lost as a direct result from the motor accident, as noted in the Veteran's medical records. While it is not perfectly evident to the Board where such is noted, the Board will defer to the examiner's medical expertise in interpreting the dental charts and notes of record. Here, competent and probative evidence is found to be at least evenly balanced so as to allow for resolution of doubt in the Veteran's favor to find that during service, the Veteran experienced an external physical force during a motorcycle accident leading to head injury and cracking of teeth #1 & #32, resulting in the need for their extraction. Such external force was outside of a clinical setting and occurred during the Veteran's performance of military duties. An investigation resulted in a final determination that the injury incurred in December 1969 was in the line of duty. As such, the Class II(a) criteria are met for eligibility for VA dental treatment for a noncompensable dental condition that resulted from service trauma, missing teeth #1 & #32. See 38 C.F.R. § 17.161(c); 38 U.S.C. § 1712(a)(1)(C). Based on the forgoing, Class II(a) dental treatment, for any treatment indicated as reasonably necessary for the correction of such service-connected noncompensable condition, is warranted. The Board recognizes that the electronic record does not reflect whether the issue of entitlement to service connection for a dental condition for treatment purposes only has been considered in the first instance by the Veterans Health Administration (VHA). However, to the extent that the portion of the claim decided herein represents a full grant of the particular benefit sought, with the remainder being remanded to the VHA for initial consideration, there is no prejudice to the Veteran. Cf. AB v. Brown, 6 Vet. App. 35 (1993). REASONS FOR REMAND Entitlement to service connection for a dental condition, other than loss of teeth #1 & #32, for treatment purposes only is remanded. Upon further review of the claims file, while the RO addressed the issue of entitlement to service connection for a dental condition for treatment purposes only in the May 2013 rating decision, there is no record of any determination by VHA regarding the Veteran's eligibility for dental treatment. Per 38 C.F.R. § 3.381(a), the Veterans Health Administration is the AOJ for questions of entitlement to service connection of dental conditions for treatment purposes only, and the RO should have referred the issue to VHA for an initial determination regarding eligibility under the requirements of 38 C.F.R. § 17.161, then adjudicated the claim only if VHA requested that VBA make a determination on questions such as whether the Veteran has a compensable or noncompensable service-connected dental condition or disability, whether the dental condition or disability is a result of service trauma, and/or whether the Veteran is totally disabled due to a service-connected disability. However, because it does not appear that any VHA claims file for this Veteran has been uploaded to the electronic record, an initial determination concerning basic eligibility for dental treatment under 38 C.F.R. § 17.161 may have already been completed by VHA. On remand, the Veteran's VHA claims file relating to his claim for entitlement to service connection for a dental condition for treatment purposes only should be associated with the electronic record, and if an initial determination concerning the Veteran's basic eligibility for outpatient dental treatment under 38 C.F.R. § 17.161 has not yet been rendered by VHA, such must be completed. In the May 2018 remand, the Board directed that the Veteran be provided with an additional VA examination and medical opinion concerning the nature and etiology of any present dental disorder. The examiner was asked to identify all current dental disorders, and in relevant part, to provide an opinion as to whether any defective or missing teeth were related to his active service, and to summarize the Veteran's dental condition at entry, during, and at discharge from service. The Veteran was provided with an additional examination and opinion in July 2019. The examiner documented missing teeth number 1, 2, 3, 4, 7, 8, 9, 10, 11, 14, 16, 17, 19, 30, 31, and 32, and also broken teeth, decays, and TMD. The examiner stated that teeth #1 and #32 were lost as a direct result from the motor accident, as noted in the medical records, but that other missing teeth were not related to the incident. It was noted that the May 2013 VA examiner first diagnosed TMD, but that examiner also stated that there was no history of TMD treatment right after the accident or for many years later. The July 2019 examiner wrote that the May 2013 VA examiner stated that connecting the 1969 accident to the TMD condition and other missing teeth is only a mere speculation, and that it was a possibility, not a causality, not a direct result from the accident. She concluded that due to this, "there is a probability of 50 percent or less that any of these problems began in or is related to [the] automobile accident that occurred in 1969." She also stated that there were missing teeth prior to the accident. The July 2019 opinion is found inadequate for adjudicatory purposes for several reasons. As an initial matter, service connection may be granted if it is at least as likely as not (50 percent or greater probability) that the current disability is etiologically related to service. Inasmuch as the examiner opined that there is a probability of 50 percent or less, clarification is needed as to the likelihood. Second, although the examiner stated that it was noted that there were missing teeth prior to the accident, review of the service treatment records does not reveal a comprehensive dental chart/examination at the time of enlistment, and the earliest dental chart appears to be from February 1970, after the January 1969 accident. Further, while the examiner indicated that the November 1970 extractions of teeth #1 and #32 were directly related to the in-service accident, it is unclear why teeth #14 and #16, which were also documented as extracted in November 1970, were not similarly related. On remand, a supplemental medical opinion should be sought which provides a clear explanation of what is demonstrated by the dental charts and notes included in the service treatment records. The matter is REMANDED for the following action: 1. Obtain a supplemental medical opinion from an appropriate clinician, preferably one with specialized knowledge of dentistry, concerning the Veteran's claim for service connection of a dental condition for treatment purposes. If additional examination is found necessary in order to respond to the below inquiries, such should be scheduled, and the Veteran provided with sufficient notice. For any/each current dental disorder, to include missing teeth other than #1 and #32, the clinician must address the following: a) is it at least as likely as not (50 percent or greater probability) that the dental condition is related to in-service trauma or disease? In fully responding to this question, the clinician's attention is directed to the dental charts and treatment records located in the Veteran's service treatment records (including but not limited to charts from February 1970, June 1970, August 1970) and post-service treatment records (July 1971 temporary disability retired list dental examination), as well as a statement submitted on behalf of the Veteran in September 1973 asserting that the accident resulted in breakage and damage to his jaw and teeth. Referring to the service records, the clinician is asked to discuss/summarize the Veteran's dental condition at entry into service and as it progressed during service and in relation to the December 1969 accident. The clinician is asked to specifically discuss the VA Ann Arbor hospital note documenting extraction of teeth #14 and #16 within the same week as teeth #1 and #32. b) is it at least as likely as not (50 percent or greater probability) that the dental condition is proximately caused by the Veteran's service-connected loss of teeth #1 and #32? c) is it at least as likely as not (50 percent or greater probability) that the dental condition is aggravated beyond its natural progression by the Veteran's service-connected loss of teeth #1 and #32? The clinician's attention is directed to a private dental opinion submitted by a private dentist, S. G., in March 2018 indicating that occlusal wear had been accelerated by missing teeth. A clear rationale should be given for all opinions and conclusions rendered. If the clinician is unable to render the requested opinions without resorting to speculation, the clinician must state whether there is inadequate factual information, whether the question falls beyond the knowledge of the clinician, whether the question falls beyond the scope of the medical community, or another reason. 2. Obtain the Veteran's VHA claims file pertaining to his claim for service connection for a dental condition for treatment purposes only from the relevant VAMC and associate it with the electronic claims file. a. If an initial determination/decision on whether the Veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161 has not yet been rendered by VHA: Refer the claim for service connection for a dental condition (other than missing teeth #1 & #32) for treatment purposes only to the appropriate VAMC of the VHA to make such an initial determination/decision. If the VAMC determines that the Veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161 and requests VBA made a determination on questions such as whether the Veteran has a compensable or noncompensable service-connected dental condition or disability, whether the dental condition or disability is a result of service trauma, and whether the Veteran is totally disabled due to a service-connected disability, readjudicate the claim for service connection for a dental condition (other than missing teeth #1 & #32) for treatment purposes only. b. If the VHA claims file reflects that VHA has already made an initial determination concerning the basic eligibility requirements of 38 C.F.R. § 17.161: Readjudicate the claim for service connection for a dental condition (other than missing teeth #1 & #32) for treatment purposes only. C. TRUEBA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Solomon, 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.