Citation Nr: 21010962 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 10-34 461 DATE: February 26, 2021 ORDER Entitlement to service connection for dental treatment purposes is denied. FINDING OF FACT The Veteran does not meet the criteria for any of the legally specified classes of veterans eligible for dental treatment provided or paid for by VA. CONCLUSION OF LAW The criteria for dental treatment have not been met. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 17.161. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1985 to July 1985 and from January 2004 to January 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2011, the Veteran testified before a Veterans Law Judge who is no longer employed at the Board. He was afforded a new hearing before the undersigned Veterans Law Judge in May 2019. Transcripts of both hearings are of record. Entitlement to service connection for dental treatment purposes The Veteran contends that he developed cavities as a result of heat, dust, bottled water, chewing gum, and mints, in relation to the dry conditions in Iraq during his deployment in 2005. He contends that following service, many of his teeth had to be replaced due to decay. Disability compensation and VA outpatient dental treatment may be provided for certain specified types of service-connected dental disorders. For other types of service-connected dental disorders, the claimant may receive treatment only and not compensation. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150, 17.161. Dental disabilities that may be awarded compensable disability ratings are set forth in 38 C.F.R. § 4.150. They include chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible; loss of the mandible; nonunion or malunion of the mandible; loss of the maxilla; nonunion or malunion of the maxilla; limited temporomandibular motion; loss of the ramus; loss of the condyloid or coronoid processes; loss of the hard palate; and loss of teeth due to the loss of substance of the body of the maxilla or mandible without loss of continuity. 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. 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 as provided for in 38 C.F.R. §§ 3.381, 17.161. To establish eligibility for outpatient dental treatment, the Veteran must (1) have a dental disorder that fits the criteria of 38 C.F.R. § 3.381, and (2) qualify for treatment under one of the ten classes specified in 38 C.F.R. § 17.161. Effective February 29, 2012, the regulations provide that the Veterans Benefits Administration (VBA) will adjudicate a claim for service connection of a dental condition for dental treatment purposes after the Veterans Health Administration (VHA) has made a determination regarding basic eligibility under the requirements of 38 C.F.R. § 17.161. 38 C.F.R. § 3.381(a). This matter was before the Board in January 2013 and September 2019, and was remanded on both occasions for referral to VHA for adjudication of Class eligibility in the first instance under 38 C.F.R. § 3.381. In June 2020, VHA determined that the Veteran did not meet the minimum criteria for outpatient dental treatment. Initially, the Board notes that an October 2008 post-service VA treatment record indicates that the Veteran had multiple moderate to severe dental caries which required extraction. Thus, he has a condition that meets the criteria of a dental disorder under 38 C.F.R. § 3.381. The Board will now also address whether the Veteran demonstrates eligibility for any particular class of dental treatment. In this case, the Veteran is not in receipt of service connection for any dental disability. Additionally, the Veteran has not contended and neither does the evidence suggest that the Veteran has a dental disability that may be awarded a compensable evaluation. Moreover, the Veteran does not have a pending claim for a compensable dental disability. Thus, he is not eligible for Class I treatment. See 38 C.F.R. § 17.161(a). Relevant to the Veteran's appeal, VA outpatient dental treatment may also be established for veterans who have a noncompensable service-connected dental condition or disability adjudicated as resulting from combat wounds or other service trauma. 38 U.S.C. § 1712; 38 C.F.R. § 17.161(c) (Class II(a) eligibility). Trauma, as defined for purposes of dental treatment eligibility, connotes damage caused by the application of an external physical force during the service member's performance of military duties. See Nielson v. Shinseki, 607 F.3d 802 (2010) (holding that "service trauma" in 38 U.S.C. § 1712(a)(1)(C) means an injury or wound produced by an external physical force during the service member's performance of military duties; this definition excludes the intended result of proper medical treatment and psychological stress not the result of malpractice). Turning to the medical evidence of record, the Board has thoroughly reviewed the service medical records and acknowledges that the Veteran received dental treatment during service. Here, the Board notes that a November 2003 in-service dental record notes several carious teeth. The same record also indicates that the Veteran was a high risk for caries and chewed tobacco. To that extent, the Board further acknowledges the Veteran’s report of having a cavity that required filling during active service. However, the term service trauma does not include the intended effects of therapy or restorative dental care and treatment provided during active service. 38 C.F.R. § 3.306(b)(1); VAOGCPREC 5-97 (1997), 62 Fed. Reg. 15566 (1997). The Board further notes the Veteran’s contention that he developed cavities as a result of heat, dust, bottled water, chewing gum, and mints in relation to the dry conditions in Iraq. However, his contentions do not fall under the definition of trauma for the purposes of dental treatment eligibility, as they are not damage caused by the application of an external physical force during the service member's performance of military duties. See Nielson, 607 F.3d 802. In this case, no dental trauma is apparent in the service medical records, nor does it appear the Veteran has identified specific dental trauma in his statements of record. Therefore, the Board finds that service connection is not warranted for residuals of dental trauma. In sum, the Veteran has not demonstrated eligibility for any particular class of dental treatment. The Veteran does not have a service-connected compensable dental disability or condition and thus he is not eligible for Class I treatment. See 38 C.F.R. § 17.161(a). While the evidence of record demonstrates the Veteran was diagnosed with carious teeth, the Veteran is ineligible for Class II treatment, as he did not apply for such treatment within 180 days after discharge. See 38 C.F.R. § 17.161(b). Additionally, as set forth above, there is no evidence that his carious teeth or missing teeth are due to trauma. His current dental problems were not due to combat. Additionally, the Veteran has not alleged, and there is no evidence suggesting, that he was a prisoner of war. See 38 C.F.R. § 3.381(a). The Veteran is not residing in a VA facility. Additionally, the Veteran has not alleged that a dental disorder is aggravating a service-connected disability or any disability for which he is receiving VA treatment. The Veteran is not in receipt of a 100 percent disability rating, is not participating in a VA rehabilitation program, and he is not scheduled to receive other care and services. As such, he does not qualify for treatment under Classes IIa, IIb, IIc, IIR III, IV, V, or VI. See 38 C.F.R. § 17.161(c), (d), (e), (f), (g), (h), (i), (j). The Board finds that the preponderance of the evidence is against the claim, and therefore service connection for a dental disability for treatment purposes, must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Marsh II, 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.