Citation Nr: 21007242 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 07-23 210 DATE: February 9, 2021 ORDER Entitlement to VA dental treatment is denied. FINDING OF FACT The Veteran does not meet the criteria for any specified class of veterans eligible for dental treatment provided or paid for by VA. CONCLUSION OF LAW The criteria for entitlement to VA dental treatment have not been met. 38 U.S.C. §§ 1110, 1131, 1712; 38 C.F.R. §§ 3.303, 3.381, 4.150, 17.161. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty in the United States Army from January 1953 to December 1954. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2006 decision of the Department of Veterans Affairs (VA) Boston Healthcare System. The Board remanded the matter twice—in July 2014 for a hearing to be scheduled, and in April 2018 for additional development. The Board finds that there has been substantial compliance with remand directives, and therefore will proceed with consideration of the appeal. Stegall v. West, 11 Vet. App. 268. In December 2020 a virtual (videoconference) hearing was held before the undersigned; a transcript is associated with the file. Legal Criteria For the purpose of establishing entitlement to VA outpatient dental treatment, there are various categories of eligibility which include: veterans who have a compensable service-connected dental condition (Class I eligibility); one-time treatment for veterans with a noncompensable service-connected dental condition (Class II eligibility); those with a noncompensable service-connected dental condition adjudicated as resulting from a combat wound or other service trauma (Class II(a) eligibility); certain homeless and other enrolled veterans eligible for a one-time course of dental care (Class II(b) eligibility); those who were detained as a POW (Class II(c) eligibility); those who made prior applications for, and received, dental treatment from VA for noncompensable dental conditions but were denied replacement of missing teeth that were lost during any period of service prior to his or her last period of service (Class IIR (Retroactive) eligibility); those having a dental condition professionally determined to be aggravating disability from an associated service-connected condition or disability (Class III eligibility); those whose service-connected disabilities are rated at 100 percent by schedular evaluation or who are entitled to the 100 percent rating by reason of individual unemployability (Class IV eligibility); those who participate in a rehabilitation program under 38 U.S.C. Chapter 31 (Class V eligibility) and those who are scheduled for admission or who are otherwise receiving care and services under Chapter 17 of 38 U.S.C., where dental care is medically necessary (Class VI eligibility). 38 U.S.C. § 1712; 38 C.F.R. §17.161. Those having a service-connected noncompensable dental condition or disability shown to have been in existence discharge or release from active service, before October 1, 1981, may be authorized any treatment indicated as reasonably necessary for the one-time correction of the service-connected noncompensable condition, but only if: (A) They were discharged or released, under conditions other than dishonorable, from a period of active military, naval, or air service of not less than 180 days. (B) Application for treatment is made within one year after such discharge or release. (C) VA dental examination is completed within 14 months after discharge or release, unless delayed through no fault of the veteran. 38 C.F.R. § 17.161(2)(i). Contentions The Veteran contends that he needs dental treatment; neither he nor his representative has provided any statement or testimony describing how (it is believed) any one of the specified classes of eligibility for VA outpatient dental treatment under 38 C.F.R. § 17.161 is met. He provided detailed explanation about how he needed a root canal and developed cavities in service due to ill-fitting plates for his molars. However, that does not identify a legal basis for establishing entitlement to VA dental treatment, determining whether he falls into one of the specified classes under which eligibility for treatment may be warranted. Evidence The Board denied service connection for dental disabilities in June 1957, stating that the evidence of record did not show dental treatment or defects during service or at time of release from active duty as required by regulations. A February 1953 service treatment record, report of dental survey, shows that the Veteran was missing several of his natural teeth in his upper and lower jaw. In April 2018 the Board denied service connection for a dental disorder for compensation purposes, finding that any teeth pulled during service did not constitute dental trauma or that it was caused by any in-service dental trauma or bone loss through trauma or disease. That decision is final. A November 2019 VA medical record shows the Veteran presented with left jaw pain. He reported having an appointment with a private dentist in two weeks for follow-up; he stated that he does not need a dentist from VA. A July 2020 VHA email indicates that the Veteran is not eligible for VA dental benefits; that is service-connected disabilities are rated 80 percent, combined; and that he has not established entitlement to a total disability rating based on individual unemployability due to service connected disability (TDIU), by which he could establishment he meets the requirements for one of the classes of eligibility for VA outpatient dental treatment (given the particular circumstances of his case). The Veteran has established service connection for bilateral hearing loss, a depressive disorder, and tinnitus, which, as noted above, are rated 80 percent, combined. Analysis Upon review of the evidence, the Board finds that service connection for a dental condition for VA outpatient dental treatment purposes must be denied. There is no material dispute that the Veteran is not eligible for dental treatment under Classes I, II, III, IV, V, or VI. He has not established service connection for a compensable or a noncompensable dental condition, which precludes Class I and Class II eligibility. He does not have a dental condition determined to be aggravating disability from an associated service-connected disability, so as to warrant Class III eligibility. He does not have a dental condition from a combat wound or service trauma to warrant Class II(a) eligibility. Regarding Classes II(b) and II(c), he is not homeless and was not a prisoner of war. Under Class II(R), he was not denied replacement of missing teeth with application made within one year of April 5, 1983. The Board recognizes that the record shows that he had teeth extracted during service and previously filed a claim for service connection for a dental disability. However, he did not receive VA treatment for a noncompensable dental condition (as he is not established service connection for a dental condition) nor did any of the previous denials result in a denial of missing teeth lost during service with application made within one year of April 5, 1983. Consequently, Class II(R) eligibility is not warranted. Finally, under Class IV, he does not have service-connected disabilities rated 100 percent (either on a schedular rating basis or based on TDIU). Under Class V, he has not participated in VA’s Vocational Rehabilitation program. Under Class VI, he was not scheduled for admission or otherwise receiving care and services under chapter 17 of 38 U.S.C. See 38 C.F.R. § 17.161. Accordingly, no criterion for establishing service connection for a dental condition for outpatient dental treatment purposes has been met, and the appeal seeking such benefit must be denied. In closing, the Board recognizes the Veteran’s honorable active service, acknowledges his need for expensive dental treatment, and sympathizes with his effort to prevail in this claim. However, the Board is bound by applicable law and regulations when deciding a claim for VA benefits, and may not grant a benefit that is not authorized under governing law and regulation. The regulatory criteria governing eligibility for VA dental treatment under 38 C.F.R. § 17.161 are specific; unfortunately, the Veteran does not meet the criteria for any class of entitlement to VA dental treatment; there is no specific contention or argument to the contrary. Accordingly, the appeal in this matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Talamantes 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.