Citation Nr: 21008172 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 13-23 825 DATE: February 11, 2021 ORDER Entitlement to service connection for a dental disability for the purpose of obtaining VA outpatient dental treatment is denied FINDING OF FACT The Veteran does not meet the criteria for eligibility for VA outpatient dental treatment under 38 U.S.C. § 1712 and 38 C.F.R. § 17.161. CONCLUSION OF LAW The criteria for service connection for a dental disability for the purpose of obtaining VA outpatient dental treatment have not been met. 38 U.S.C. § § 1110, 1131, 1712, 5107, 38 C.F.R. § § 3.303, 3.381, 4.150, 17.161. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1962 until his honorable discharge in August 1965. This appeal has been advanced on the Board of Veterans’ Appeals’ (Board) docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. § 20.902(c). A discussion of the procedural history is necessary in this case in order to provide clarity about the issue on appeal. In December 2010, the Veteran filed a claim for service connection for a dental condition, which will be discussed fully later within this order. The Louisville, Kentucky, Regional Office (RO) of the United States Department of Veterans Affairs (VA) issued a rating decision in October 2011 denying “service connection for dental treatment purposes.” The Veteran filed a timely notice of disagreement, and the RO issued a statement of the case (SOC) in August 2013 continuing denial of “service connection for dental treatment purposes.” The Veteran filed a timely appeal to the Board. In December 2016, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the record on appeal. During the hearing, the Veteran’s representative clarified that the Veteran’s claim was one for service connection for compensation and for treatment. In October 2017, the Board remanded the case to the RO for further development. First, the Board interpreted the RO’s rating decision and SOC as an adjudication only as to eligibility for VA dental treatment. Thus, the Board recharacterized the Veteran’s dental claim to include (1) a claim for service connection for compensation and (2) a claim for dental treatment. Second, the RO was required to adjudicate the claim for service connection in the first instance. As part of the Board’s remand directives, it stated, “If the Veteran’s claim for service connection for a dental condition for compensation is denied and he perfects an appeal, return that case to the Board for further appellate action.” The RO issued a May 2020 supplemental statement of the case (SSOC) noting that it was unable to adjudicate the Veteran’s claim for dental treatment because 38 C.F.R. § 3.381(a) directs that the Veterans Benefit Administration (VBA), which includes the RO, will only adjudicate a claim for dental treatment after the Veterans Health Administration (VHA) determines a veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161 and requests VBA make a determination on particular issues as set forth in 38 C.F.R. §§ 3.381(a)(1)‒(5). The RO also specifically stated that the Veteran’s claim for service connection for compensation for his dental condition “is now discussed on a separate rating decision and will not be forwarded to the Board, as it is not part of a perfected appeal.” The RO simultaneously issued a May 2020 rating decision denying service connection for compensation as to the Veteran’s dental condition. The Veteran’s claim for service connection for dental treatment returned to the Board. The Veteran has not appealed the May 2020 rating decision as to service connection for compensation as of the date of this decision. In a July 2020 decision, the Board remanded the Veteran’s claim for service connection for dental treatment and directed the RO to refer the Veteran’s claim to the VHA for a determination as to his eligibility consistent with 38 C.F.R. § 3.381(a). In November 2020, the Rocky Mountain Regional VA Medical Center, part of VHA, issued a memorandum determining that the Veteran did not meet the eligibility criteria for dental treatment. Subsequently, the RO issued a November 2020 SSOC continuing denial of service connection for dental treatment based on VHA’s determination. The Board finds that there has been substantial compliance with the Board’s previous remand directives regarding the sole issue on appeal, entitlement to service connection for VA outpatient dental treatment. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for a dental condition for the purpose of obtaining VA outpatient dental treatment VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a “service connection.” 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to be entitled to service connection there must be competent, credible evidence of (1) a current disability, (2) an in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When these elements are satisfied, service connection may be granted on a direct basis. Claims for service connection for dental conditions, however, are treated differently than claims for service connection for other medical conditions. The Board must construe a claim for service connection for a dental condition as both a claim for compensation and a claim for treatment. See Mays v. Brown, 5 Vet. App. 302, 306 (1993). As discussed above, the Board has done so. At the time of the issuance of this decision, the Veteran has not filed an appeal from the RO’s May 2020 rating decision for service connection for compensation. Therefore, the only issue for the Board to resolve is a claim for service connection for the purpose of obtaining VA outpatient dental treatment. Section 1712 of Title 38, United States Code, sets forth the eligibility criteria for VA outpatient dental treatment. See also 38 C.F.R. §§ 3.381 (corresponding regulation for service connection of dental conditions for treatment purposes), 17.161 (corresponding regulation dividing those veterans eligible for outpatient dental treatment into classes). Depending on the dental condition asserted/found, the character of the Veteran’s military service, the claimed in-service event leading to the claimed dental condition, and the timing of the claimed dental condition, VA outpatient dental treatment may or may not be available. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 17.161. The Veteran’s contentions and factual recollection have remained consistent throughout his appeal. See December 2010 and December 2011 Statements in Support of Claim; January 2012 Notice of Disagreement; December 2016 Board Hearing Transcript. He has asserted that while stationed in Dillsboro, Indiana, with the 4th Missile Battalion, 44th Air Defense Artillery, a military dentist removed four to six of his molars. The dentist made impressions for “partial plates” which the Veteran was to receive at a later date. Following that dentist appointment, the dentist was killed in a car accident. The Veteran never received his dental plates. He was then deployed to South Korea from September 1964 until August 1965. The Veteran inquired about his dental plates and never received a response. After his separation from service, he had all of his teeth removed in 2010 by a private dentist. He asserted that all of his teeth were removed due to the failure of VA to provide him with his partial plates. He was required to use his remaining teeth to chew food, which resulted in excessive wear of his remaining teeth causing exposure of his nerves that resulted in severe pain. The Board finds the Veteran competent to report the treatment he received in service, his physical sensations of pain associated with his teeth, and the events following his military service. The Board also finds this evidence credible and probative. Nevertheless, the eligibility for outpatient dental treatment is specific, and the Veteran does not satisfy any of the eligibility criteria found within 38 C.F.R. § 17.161 and 38 U.S.C. § 1712 (statutory authority). Section 3.381 of Title 38 of the Code of Federal Regulations provides that [t]he Veterans Benefits Administration (VBA) will adjudicate a claim for service connection of a dental condition for treatment purposes after the Veterans Health Administration determines a veteran meets the basic eligibility requirements of § 17.161 of this chapter and requests VBA make a determination on questions that include . . . . 38 C.F.R. § 3.381(a) (emphasis added). Section 17.161 of Title 38 of the Code of Federal Regulations, entitled “Authorization of outpatient dental treatment,” states, “Outpatient dental treatment may be authorized by the Chief, Dental Service, for beneficiaries defined in 38 U.S.C. § 1712(b) and 38 C.F.R. § 17.93 to the extent prescribed and in accordance with the applicable classification and provisions set forth in this section.” (Emphasis added). Section 17.161 creates multiple “classes” of veterans with differing eligibility criteria to received outpatient dental treatment. A veteran must fall within one of the classes to be entitled to outpatient dental treatment. Class I veterans—“[t]hose having a service-connected compensable dental disability or condition”—are eligible to receive “any dental treatment indicated as reasonably necessary to maintain oral health and masticatory function.” 38 C.F.R. § 17.161(a) (emphasis added); see 38 U.S.C. § 1712(a)(1)(A). The Veteran does not have a service-connected compensable dental disability or condition at this time. Thus, these criteria are not met. Class II veterans—those who have a service-connected noncompensable dental disability or condition—are eligible to receive “any treatment indicated as reasonably necessary for the one-time correction of [that] condition,” provided that certain additional criteria are met. 38 C.F.R. § 17.161(b); see 38 U.S.C. § 1712(a)(1)(B). The Veteran does not have a service-connected noncompensable dental disability or condition at this time. Thus, these criteria are not met. There is also a subset of Class II veterans. Class II(a) veterans are eligible to receive “any treatment indicated as reasonably necessary for the correction of [a] service-connected noncompensable [dental] condition or disability” if the dental condition or disability is “adjudicated as resulting from combat wounds or service trauma.” 38 C.F.R. § 17.161(c); see 38 U.S.C. § 1712(a)(1)(C). In Nielson v. Shinseki, this court held that the phrase “service trauma” as used in 38 U.S.C. § 1712 “is an injury or wound violently produced while the injured or wounded is in the armed forces.” 23 Vet. App. 56, 60 (2009), aff’d, 607 F.3d 802 (Fed. Cir. 2010). In its affirmance, the Federal Circuit further held that neither the removal of teeth in service by a military dentist nor the intended effects of proper medical treatment provided during the veteran’s military service constitute service trauma. 607 F.3d at 808. Even if the Board were to assume the Veteran suffered “service trauma” because the Veteran did not receive his partial plates as anticipated, the Veteran still does not have a service-connected noncompensable dental disability or condition. Thus, the criteria are not met. Class II(b) veterans are certain homeless and other enrolled veterans eligible for a one-time course of dental care under 38 U.S.C. § 2062. 38 C.F.R. § 17.161(d). The Veteran is not homeless nor is he an “other enrolled veteran.” Thus, these criteria are not met. Class II(c) veterans—“[t]hose who were prisoners of war”—are eligible to receive “any needed outpatient dental treatment.” 38 C.F.R. § 17.161(e); see 38 U.S.C. § 1712(a)(1)(C). The Veteran was not a former prisoner of war. Thus, these criteria are not met. Class III eligibility applies to a veteran whose service-connected noncompensable dental condition is aggravating an associated service-connected disability. 38 C.F.R. § 17.161(g). The Veteran does not have a service-connected noncompensable dental condition, nor one that is aggravating an associated service-connected disability, at this time. Thus, these criteria are not me. Class IV eligibility applies to a veteran whose service-connected disabilities are rated 100 percent by schedular evaluation or who are entitled to total disability due to individual unemployability (TDIU). 38 C.F.R. § 17.161(h). The Veteran does not have a service-connected disability rated at 100 percent nor is he entitled to TDIU. Thus, these criteria are not met. Class V eligibility applies to a veteran “who is participating in a rehabilitation program under 38 U.S.C. chapter 31.” 38 C.F.R. § 17.161(i). There is no evidence that the Veteran is part of such a program. Thus, these criteria are not met. Class VI eligibility applies to a veteran “scheduled for admission or otherwise receiving care or services under chapter 17 of 38 U.S.C.” 38 C.F.R. § 17.161(j). There is no evidence the Veteran is scheduled for admission or otherwise receives care or services under chapter 17. Thus, these criteria are not met. As the Veteran does not meet any of the eligibility criteria under 38 C.F.R. § 17.161; 38 U.S.C. § 1712 to receive VA outpatient dental care at this time, the Board must deny the claim. It is only when a Veteran meets one of the foregoing eligibility criteria that he or she is entitled to service connection for VA outpatient dental treatment. 38 U.S.C. § 3.381. This decision should not be construed as offering an opinion on whether the Veteran could obtain service connection for compensation purposes for any of his dental conditions in the future. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. F. Sawka, 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.