Citation Nr: A21020230 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 190903-29695 DATE: December 17, 2021 REMAND Entitlement to service connection for a dental condition (claimed as an injury to a front tooth and the mouth) is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1967 to August 1969. This appeal to the Board of Veterans' Appeals (Board) is from an August 2019 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), or Agency of Original Jurisdiction (AOJ), denying a petition to reopen this previously denied claim. On his September 2019 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement NOD)), the Veteran elected the "direct review" option, which precludes the Board from considering any evidence other than that of record at time of the decision that he has appealed. See 38 C.F.R. § 20.301. In September 2020, the Board determined there was new and relevant evidence to warrant readjudicating this claim, so granted this petition, but then proceeded to deny this claim on its underlying merits. The Veteran then appealed to the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC). In a July 2021 Order granting a Joint Motion for Partial Remand (JMPR), the Court vacated the Board's denial of this claim but not the extent of the decision determining it warranted being readjudicated and remanded this claim back to the Board for further development and readjudication in compliance with agreement in the JMPR. To comply with the JMPR, the Board in turn is remanding this claim back to the RO (AOJ) for further development and consideration including especially for a dental examination and opinion concerning the nature and etiology of this claimed dental condition. Entitlement to service connection for a dental condition (claimed as an injury to a front tooth and the mouth) Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or an injury; and (3) a causal relationship ("nexus") between the current disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In the VA benefits system, dental disabilities are treated differently from medical disabilities. Service connection will be granted for a dental disease or injury of individual teeth and the investing tissue shown by the evidence to have been incurred in or aggravated by service. See 38 C.F.R. § 3.381(a). However, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not considered compensable disabilities and will be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment, not for compensation purposes. Id. And treatment eligibility, in turn, is determined by 38 C.F.R. § 17.161. These conditions, and other dental conditions or disabilities that are not rated compensable under § 4.150 of this chapter, may be service connected for purposes of Class II or Class II(a) dental treatment under § 17.161 of this chapter. 38 C.F.R. § 3.381(b). VA's General Counsel has held that, merely to have had dental extractions during service is not tantamount to dental "trauma", because trauma of teeth, even extractions, in and of itself, does not constitute dental trauma. See VAOPGCPREC 5-97 (January 22, 1997). For the purposes of determining whether a veteran has Class II(a) eligibility for dental care under § 17.161(c), the term "service trauma" does not include the intended effects of treatment provided during the veteran's military service. Id. Here, the record reflects that the Veteran suffered a blow to his face, i.e., an unintended trauma, in May 1969 during his service in the Republic of Vietnam, thereby cracking one front tooth and knocking out another. This injury required dental treatment in service and at least one tooth replacement thereafter. Notably, the Veteran's dental service treatment records (STRs) are unavailable. In instances where service department records are unavailable, through no fault of the Veteran, VA adjudicators have a heightened obligation to explain its findings and conclusions and to carefully consider whether the evidence is in equipoise to warrant applying the benefit-of-the-doubt doctrine. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). That said, the O'Hare precedent does not raise a presumption that the missing medical or, here, dental records, if available for consideration, necessarily would support the claim. That is, missing STRs do not lower the threshold for an allowance of a claim; there is no reverse presumption for granting a claim. The legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened. See Russo v. Brown, 9 Vet. App. 46 (1996). The case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit-of-the-doubt doctrine, to assist the claimant in developing the claim, and to explain its decision when a claimant's medical records have been lost or destroyed. See Ussery v. Brown, 8 Vet. App. 64 (1995). Thus, missing STRs, alone, while indeed unfortunate, do not obviate the need for the Veteran to still have competent and credible (i.e., probative) evidence supporting his claim for service connection by suggesting a correlation between his claimed condition and his military service. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 356, 406 (1991) and O'Hare, 1 Vet. App. at 367). Here, though, the record contains lay statements to medical providers, letters from the Veteran to his family describing dental visits in May 1969 (so while in service), a battle buddy witness statement who saw the injury while performing maintenance on heavy machinery, and current statements from the Veteran recounting the event in question. Thus, this evidence is sufficient to suggest relevant dental injury during his service. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). And as there also is lay evidence suggesting consequent dental disability, the Board is obtaining a dental opinion concerning the nature and scope of the Veteran's dental condition, especially in terms of whether related or attributable to his dental trauma in service. See McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). Accordingly, this claim is REMANDED for the following action: Schedule the Veteran for a VA dental examination to assess the nature and etiology of his claimed current dental condition. The examiner must review the relevant evidence in the claims file to assist in making this important determination including a complete copy of this remand and the JMPR the Court granted. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment of his earning capacity, or if the condition manifests as asymptomatic tooth replacements, crowns, or other repair for lost teeth, then the examiner should consider these manifestations as, for all intents and purposes, indicative of a "disability." With that in mind, the examiner is then asked to provide a response to the following: Is the current dental condition as likely as not related or attributable to the Veteran's military service, including particularly to his asserted dental injury in May 1969 or thereabouts? In responding, consider the Veteran's description of his injury in service, symptoms, and treatment, as well as his post-service symptoms and treatment, but also keeping in mind that his STRs are unavailable. If there is any medical reason to accept or reject the proposition that his reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do his reports about his symptoms align with how the currently diagnosed disability is known to develop or are his reports generally inconsistent with medical knowledge or implausible? KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Stearns, Associate 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.