Citation Nr: 21076512 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 17-29 174 DATE: December 27, 2021 ORDER The appeal of entitlement to service connection of a dental condition for treatment purposes only is dismissed. REFERRED The issue of entitlement to service connection of a dental condition for treatment purposes only was raised in the April 2014 application for benefits but has not yet been addressed by the Agency of Original Jurisdiction (AOJ); it is therefore referred to the Veterans Health Administration (VHA) for initial consideration and appropriate action. FINDING OF FACT The record does not reflect that the AOJ, VHA, has rendered an initial determination on the Veteran's eligibility for and entitlement to outpatient dental treatment services. CONCLUSION OF LAW As the AOJ has not rendered an initial determination/decision on this matter, and is no valid appeal before the Board, the claim of entitlement to service connection for a dental condition for treatment purposes only is dismissed. 38 U.S.C. §§ 1712, 5104, 7104, 7105; 38 C.F.R. §§ 3.381, 17.161, 19.20, 19.21, 20.104, 20.201, 20.202. REASONS AND BASES FOR FINDING AND CONCLUSION This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for injury to teeth/dental repair, for compensation purposes. The Veteran appealed, then indicated that she was seeking service connection both for purposes of obtaining outpatient dental treatment as well as for compensation. In July 2019, the RO sent the Veteran correspondence noting that it would continue processing her appeal concerning entitlement to service connection of a dental disability for compensation purposes, but that she must initiate her claim for dental treatment with her nearest VA healthcare facility. It included detailed instructions as to how she could initiate that claim. The Veteran testified at a hearing before the undersigned Veterans Law Judge in February 2020. A transcript is associated with the record. An April 2020 Board decision denied the Veteran's claim for entitlement to service connection for a dental disability for compensation purposes. Noting that a claim for service connection for a dental disability for purposes of compensation must also be considered to be a claim for service connection for a dental disability for purposes of VA outpatient dental treatment, the Board recharacterized the issue to include a claim for VA outpatient dental treatment. See Mays v. Brown, 5 Vet. App. 302, 306 (1993). The Board remanded the issue of entitlement to service connection for a noncompensable dental condition for the purpose of obtaining VA outpatient dental treatment and directed that the RO refer the claim to the appropriate VA Medical Center of VHA to determine if the Veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161. Review of the record indicates that, post-remand, the RO provided the Veteran with a contract examination and medical opinion concerning whether the Veteran has a current dental condition related to her active service, then issued a supplemental statement of the case in November 2020 pertaining to the claim for service connection of a dental condition for the purpose of obtaining VA outpatient dental treatment. The regulation relating to service connection of dental conditions for treatment purposes was amended, effective February 29, 2012, in order to clarify existing regulatory provisions and to reflect the respective responsibilities of the Veterans Health Administration (VHA) and Veterans Benefits Administration (VBA) in determinations concerning eligibility for dental treatment. See Proposed Rules, Dental Conditions, 76 Fed. Reg. 14,600 (Mar. 17, 2011); Final Rule, Dental Conditions, 77 Fed. Reg. 4469 (Jan. 30, 2012). The amended version of 38 C.F.R. § 3.381 clarifies that VBA will adjudicate a claim for service connection of a dental condition for treatment purposes only after the VHA determines that a veteran meets the basic eligibility requirements of 38C.F.R. §17.161 and requests that VBA make a determination on relevant questions such as whether the dental condition is a result of combat wounds or service trauma or whether the Veteran is totally disabled due to a service-connected disability. 38 C.F.R. § 3.381(a). There is no indication in the record that this matter was referred to VHA, or that VHA rendered an initial determination on the question of basic eligibility under 38 C.F.R. § 17.161. Even had VHA made a determination on basic eligibility and requested that VBA make a determination on certain questions under its purview, VBA would then have needed to issue a rating decision on this claim, rather than a supplemental statement of the case, as that decision would represent the initial adjudication of the matter. If the initial claim was not granted to the Veteran's satisfaction, she then would be able to initiate an appeal by filing a timely notice of disagreement. Inasmuch as the issue presently before the Board has not undergone initial consideration by the AOJ, VHA, and does not come before the Board by way of the filing of a notice of disagreement appealing that initial decision, the issue is not in appellate status and must be dismissed. See 38 U.S.C. §§ 5104, 7104, 7105; 38 C.F.R. §§ 19.20, 19.21, 20.104, 20.201, 20.202. While the Board regrets any additional delay, referral of the issue of entitlement to service connection for a dental condition for treatment purposes only is found warranted in this case; and the issue has been referred to VHA, above. C.A. SKOW 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.