Citation Nr: 21007469 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 18-22 529 DATE: February 9, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for a dental condition is reopened, to this extent only the claim is granted. REMANDED Entitlement to service connection for a dental condition, claimed as replacement of dental bridge, to include for treatment purposes, is remanded. FINDINGS OF FACT 1. The Veteran’s claim for service connection for a dental condition was previously denied by an April 1957 decision; the Veteran did not appeal the decision and documentation constituting new and material evidence was not actually or constructively received within the one-year appeal period. 2. Additional evidence received since the April 1957 decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for a dental condition, and raises a reasonable possibility of substantiating the claim.   CONCLUSIONS OF LAW 1. The April 1957 decision denying service connection for a dental condition is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103 (2020). 2. New and material evidence has been received to reopen the Veteran’s claim for service connection for a dental condition. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1952 to November 1956. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, a hearing was held before the undersigned. A transcript of the hearing is of record. New and Material Evidence The Veteran’s claim of service connection for a dental condition was originally denied by an April 1957 decision. The RO notified the Veteran of its decision, and of his appellate rights. The Veteran did not appeal the decision, nor was any new and material evidence actually or constructively received within a year following the decision; therefore, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. A claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. “New” evidence means existing evidence not previously submitted to agency decisionmakers. “Material” evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. When determining whether a claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). The April 1957 decision denied the claim of service connection for a dental condition based on a finding that the Veteran was not discharged from active service other than in time of war for disability incurred in or aggravated in line of duty in active service. Evidence added to the record since the April 1957 denial includes a December 2017 statement from the Veteran, where he indicated that he had a cavity filled during service and then shortly thereafter suffered excruciating pain and as a result the tooth was extracted and replaced by a bridge. The Veteran stated he later found out that the cavity was not lined before the tooth was filled, and the nerve was not protected, which resulted in pain and the need for extraction. This evidence is new in that it was not previously of record and it is not cumulative or redundant of the evidence of record at the time of the April 1957 decision. It is also material in that it relates to an unestablished fact necessary to substantiate the claim for service connection for a dental condition and raises a reasonable possibility of substantiating the claim for purposes of reopening the claim. Since the evidence is both new and material, the claim of service connection for a dental condition is reopened.   REASONS FOR REMAND Regarding the reopened claim for service connection for a dental condition, under current VA regulations, compensation is only available for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla. Compensation is available for loss of teeth only if such is due to loss of substance of body of maxilla or mandible due to trauma or disease such as osteomyelitis, but not periodontal disease. However, a claim of service connection for a dental condition may also be a claim for VA outpatient dental treatment. Mays v. Brown, 5 Vet. App. 302 (1993). 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. Here, at the December 2020 hearing, the Veteran specifically indicated that he was also seeking service connection for treatment purposes. The regulation governing adjudication of a claim for service connection for dental conditions for treatment purposes was amended, effective February 29, 2012. This change clarified existing regulatory provisions 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 entitlement to service connection for a dental condition for treatment purposes only after VHA determines that a Veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161 and requests that VBA make a determination on relevant questions. 38 C.F.R. § 3.381(a). The issue must be remanded so that the claim may be referred to the VHA for appropriate consideration. 38 C.F.R. § 3.381. While on remand, updated VA treatment records should be obtained. The Veteran should also be afforded the opportunity to identify and/or provide any additional evidence in support of his claim. The matters are REMANDED for the following actions: 1. Contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim. Based on his response, attempt to procure copies of all records which have not previously been obtained from identified treatment sources. 2. Obtain the Veteran’s VA treatment records for the period from October 2018 to the present. 3. Refer the claim for entitlement to service connection for a dental condition for treatment purposes to an appropriate VA Medical Center to determine whether the Veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161. Then, adjudicate the claim as requested by VHA, if the claim is returned to the RO from VHA. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Bonnie Yoon, 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.