Citation Nr: A21020260 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 211116-197988 DATE: December 20, 2021 ORDER Service connection for gum disease is denied. An initial rating of 10 percent for a right shoulder surgical scar is granted. FINDINGS OF FACT 1. The Veteran's dental disorder, described as gum disease, is not considered a disability for Department of Veterans Affairs (VA) compensation purposes. 2. The Veteran does not meet the requirements for VA outpatient dental treatment. 3. The Veteran's right shoulder surgical scar results in subjective pain. CONCLUSIONS OF LAW 1. The criteria for service connection for a dental disorder (gum disease) for purposes of compensation have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.381, 4.150. 2. The criteria for entitlement to outpatient dental treatment have not been met. 38 U.S.C. § 1712; 38 C.F.R. § 17.161. 3. The criteria for a rating of 10 percent for a right shoulder surgical scar have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code (Code) 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from August 1963 to August 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2021 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In the November 2021VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. 1. Entitlement to service connection for gum disease In order to establish service connection on a direct basis, the record must contain competent evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Saunders v. Wilkie, 886 F. 3d 1356 (Fed. Cir. 2018). In the absence of proof of a present disability there can be no valid claim. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F. 3d 1039, 1043 (Fed. Cir. 1994). Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not disabilities for VA compensation purposes. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150, Diagnostic Code 9913. In a July 1967 report of medical examination, a clinician notes a dental defect. In December 1970 the Veteran filed for an application for outpatient treatment for a dental condition. The application was not timely. In a January 1971 notification letter, VA notified the Veteran that his request had been denied as untimely because outpatient treatment for service-connected disabilities may only be furnished on a one-time basis, provided that application be made within one year of release from active service. In February 1980 the Veteran filed to have his dental condition claim reconsidered. The Veteran referred to deterioration of the gums and diseases of the gums. In a February 1980 lay statement, the Veteran stated he was made aware that he had an advanced chronic disease of inflammatory periodontitis; degeneration of the dental periosteum; alveolar bone; cementum; and adjacent gingiva. In March 1980 correspondence, VA denied the Veteran's claim for dental treatment due to its untimeliness. VA informed the Veteran that continuous dental treatment may be authorized to a veteran who has a non-compensable service-connected dental condition only if it is determined to have been the result of a combat wound, trauma, or former prisoner of war status. In November 2018 correspondence, the Veteran stated that he believed that his gum disease was due to flight line duties which lasted over three days at a time. prohibiting him from regular dental flossing due to shift changes. Initially, the Board notes that the Veteran has not contended, nor does the evidence indicate, that any gum disease constitutes loss of substance of body of the maxilla or the mandible due to trauma or disease such as osteomyelitis. See 38 C.F.R. § 4.150 (noting that current legal authority only allows compensation for certain types of dental and oral conditions, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla.). As such, the Board finds the preponderance of the evidence weighs against a finding of any anatomical loss of mandible or maxilla that was not due to edentulous atrophy or periodontal disease. Id. A Veteran may be entitled to service connection for dental conditions including treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease, for the sole purposes of receiving VA outpatient dental services and treatment, if certain criteria are met. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 17.161. Service connection for a dental disorder is not warranted. The Veteran's currently diagnosed gum disease is not a dental disability for VA purposes. Stated more concretely, the Veteran's gum and periodontal disease (as well as their associated symptoms) are not considered dental disorder for which VA compensation benefits are payable. Compensation for dental disability is warranted only when due to trauma with resultant loss, malunion, or limited motion of the mandible, maxilla, ramus, condyloid process, or hard palate, or loss of substance of the maxilla or mandible. The Veteran's theory of entitlement is that he was unable to floss in service lead to gum disease. Such theory of entitlement does not constitute dental trauma. See VAOPGCPREC 5-97, 62 Fed. Reg. 15,566 (1997). The Board acknowledges the Veteran's belier that his current gum disease has its "genesis" in a dental defect noted during active-duty service. Unfortunately, service connection for compensation purposes may not be awarded for treatable carious teeth, replaceable missing teeth, or periodontal disease. See 38 C.F.R. § 3.381 (b). As the Veteran seeks service connection for a dental disability, described as gum disease, and such may only be considered service-connected for the purpose of establishing eligibility for outpatient dental treatment, not for compensation purposes, the claim for service connection for compensation purposes must be denied. Nonetheless, the claim for service connection for a dental disorder for disability compensation is also considered a claim for entitlement to service connection for a dental disorder for the purposes of VA outpatient dental treatment. Mays v. Brown, 5 Vet. App. 302 (1993). In this regard, treatable carious teeth, 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. Several categories of eligibility exist for VA outpatient dental treatment. However, the Veteran does not qualify for these categories of eligibility. See 38 U.S.C. § 1712; 38 C.F.R. §§ 17.161, 17.162. Hence, service connection for a dental disability for purposes of outpatient dental treatment must be denied. 2. An initial rating of 10 percent for a right shoulder surgical scar In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Scars are evaluated under 38 C.F.R. § 4.118, Codes 7800 through 7805. Code 7800 applies to scars of the head, face, and neck (and therefore does not apply in this case). Code 7801 applies to scars, not of the head, face, or neck that are deep and nonlinear. A 10 percent rating is assigned for an area or areas of at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters). Note 2 provides that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Superficial and nonlinear scars not of the head, face, or neck are rated under Code 7802, which provides for a 10 percent rating for scars with an area or areas of at least 144 square inches (929 square cm). Note 2 defines a superficial scar as one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Code 7802 and note following. Under Code 7804 (for scars that are unstable or painful) a 10 percent rating is assigned for one or two qualifying scars, a 20 percent rating for three or four qualifying scars, and a 30 percent rating for five or more qualifying scars. Note 1 defines an unstable scar as one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118. Under Code 7805 any disabling effect(s) [of scars] not considered in a rating under Codes 7800-04 are to be rated under an appropriate Code. 38 C.F.R. § 4.118. At an April 2019 VA shoulder and arm conditions examination, a clinician reported that the Veteran's right shoulder scar measured 19 cm by 1 cm in size. The scar was neither painful nor unstable. In September 2019 correspondence the Veteran indicated that his right shoulder scar hurts when scratched and when certain clothes rub it. The Veteran has one scar which he has described as sometimes painful. The scar is not unstable. At the April 2019 right shoulder examination, the clinician indicated that the right shoulder scar was neither painful nor unstable. However, the Board does not find that the Veteran's September 2019 statement that his scar is painful when scratched or comes in contact with certain clothes to lack credibility. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The Veteran's accounts are also plausible and consistent. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Accordingly, resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's right shoulder surgical scar is painful and consistent with a 10 percent rating under Code 7804. The Veteran's scar does not cover an area of at least 77 square centimeters, and therefore a rating in excess of 10 percent under Code 7801 is not warranted. Finally, the Veteran's scar does not result in any limitation of function, and therefore a rating in excess of 10 percent is not warranted under Code 7805. Therefore, the criteria for a 10 percent rating for a right shoulder surgical scar have been met, and a 10 percent rating is warranted. B. J. KOMINS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Nicole Staskowski 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.