Citation Nr: 21007782 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 19-20 082 DATE: February 10, 2021 ORDER New and material evidence, having been received, the issue of entitlement to service connection for a dental disability for disability compensation purposes is reopened. Service connection for headaches is granted. REMANDED Entitlement to service connection for a dental disability for compensation purposes is remanded. Entitlement to service connection for a dental disability for VA treatment purposes is remanded. INTRODCUTION The Veteran served on active duty from July 1957 to June 1959. In December 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. FINDING OF FACT 1. The Veteran’s claim of entitlement to service connection for a dental disability for disability compensation purposes was denied in an April 2000 rating decision because the claim was not “well-grounded,” and the evidence did not establish the presence of a disability subject to service connection. 2. In March 2001, the Veteran attempted to reopen this claim, but it was denied in an April 2002 rating decision. 3. No new and material evidence was received within one year of the April 2000 or April 2002 rating decision, and the Veteran did not perfect an appeal of either decision. 4. Since the April 2002 rating decision, new and material has been received by VA sufficient reopen the claim. 5. The Veteran’s headaches had their onset in service. CONCLUSION OF LAW 1. As new and material evidence has been received, the Veteran’s claim of entitlement to service connection for a dental disability for disability compensation purposes is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The criteria for service connection for a headache disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION Reopen Dental Disability for Compensation Purposes The Veteran previously submitted a claim of entitlement to service connection for a dental disability for disability compensation purpose, which VA denied in an April 2000 rating decision on the basis that the claim was not “well-grounded” and because the evidence did not include a dental disability subject to service connection. Notwithstanding the RO’s unappealed April 2000 rating decision denying service connection for dental disability on the basis that the claim was not well grounded under the law then in effect, the RO appropriately readjudicated the issue de novo in light of the Veteran’s March 2001 application to reopen a claim for this disability. Section 7 of the Veterans Claims Assistance Act of 2000, Pub. L. No. 106 475, § 7(b), 114 Stat. 2096, 2099, provides that if a claim that was denied as not well grounded became final between July 14, 1999, and November 9, 2000, it may be readjudicated under the VCAA “as if the denial or dismissal had not been made,” provided a timely request is filed by the claimant or on the Secretary’s own motion. See Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1343-44 (Fed. Cir. 2003); see also VAOPGCPREC 03-2001 (Jan. 22, 2001). If there was a request made by the claimant, that request had to be filed by the claimant no later than two years after the date of the enactment of the VCAA, i.e., not later than November 9, 2002. Here, in March 2001, the Veteran requested that his claim be readjudicated. Thus, as a matter of law, the RO’s April 2000 rating decision was erased and the Veteran’s claim of entitlement to service connection for dental disability was appropriate adjudicated on a de novo basis by the RO. Because the Veteran did not submit a Notice of Disagreement or new evidence in connection with the claim within the respective a year of the notice of the April 2002 rating decision, that determination became final. See 38 C.F.R. § 3.156(b). In connection with the Veteran’s current claim to reopen, the Veteran testified at a hearing before the undersigned Veterans Law Judge in December 2020. The Veteran testified that he underwent dental surgery during his active duty. The Board observes that the Veteran’s service records are unavailable because they were destroyed in a fire. The Veteran’s testimony presumed credible for the purposes of reopening and is thus new and material evidence sufficient to reopen his previously denied claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Additional development of this claim is required and will be addressed in the remand portion of this decision below. Headaches The Veteran seeking service connection for a headache disability. Service connection may be granted for a disability resulting in a disease or injury that is incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 U.S.C. § 3.303. To establish service connection for the claimed disorder, the following criteria must be met: (1) evidence of a current disability; (2) evidence of an in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and current disability. See 38 C.F.R. § 3.303; see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). The National Personnel Records Center determined that the Veteran’s service records were unavailable due to a fire. When records in the possession of the government are unavailable through no fault of the Veteran, VA has a heightened obligation to assist the Veteran in the development of his case, and to explain findings and conclusions, as well as carefully consider the benefit of the doubt rule. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Throughout the pendency of this appeal, including during the December 2020 hearing, the Veteran asserted that his headaches onset during service. He further asserted that he was rushed to a hospital for treatment while stationed in Germany, and that he his headaches have continued since his service separation. The Board finds the Veteran’s assertion to be highly credible and probative, both as to the onset and course of his headaches. The evidence of record is at least in equipoise as to whether the Veteran first began experiencing a headache disorder in service and currently still experiences a headache disorder. Consequently, the Board finds that service connection for a headache disability is warranted. Flynn v. Brown, 6 Vet. App. 500, 503 (1994). REASONS FOR REMAND The Veteran claims that he sustained in-service dental trauma, to include emergency tooth extraction, resulted in a dental disability. This claim has been reopened herein, and the Board finds that a remand is warranted in order to provide the Veteran with a VA examination in order to satisfy VA’s duty to assist. The claim of entitlement to service connection for a dental disability for VA treatment purposes is inextricably intertwined and, thus, a remand for contemporaneous considered is required. 38 C.F.R. § 20.202; see Mays v. Brown, 5 Vet. App. 302 (1993). The matters are REMANDED for the following action: 1. Develop and adjudicate the issue of entitlement to service connection for a dental disability for purposes of obtaining VA outpatient treatment consistent with 38 C.F.R. § 4.150. 2. Provide the Veteran with the appropriate VA dental examination. The Veteran’s claims file must be made available to the examiner and the examiner must specify in the report that it was contemporaneously reviewed. All pertinent symptomatology and findings must be reported. Any indicated special diagnostic tests that are deemed necessary for an accurate assessment must be conducted. The examiner should then provide an opinion as to whether the Veteran currently experiences a dental disability that is subject to service connection. If so, the examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any eligible dental disability was incurred in or due to his active duty. All rendered opinions must be accompanied by a thorough rationale. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean G. Pflugner, 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.