Citation Nr: 21013799 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 09-16 476 DATE: March 10, 2021 REMANDED Entitlement to service connection for a dental disorder for compensation purposes is remanded. REASONS FOR REMAND The Veteran honorably served on active duty in the United States Army from October 1961 to June 1962. He also served in the Army reserves prior to and after his active service. This matter originally came before the Board of Veterans’ Appeals (Board) on appeal from a December 2007 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which denied service connection for dental trauma. The Board considered the claim in February 2012, on which occasion service connection for a dental disorder for compensation purposes was denied. The Veteran appealed the Board’s decision to the U.S. Court of Appeals for Veterans Claims (CAVC). In December 2014, the CAVC granted a joint motion for remand (JMR) that vacated the February 2012 Board decision. Loughlin v. McDonald, No. 13-1481, Dec. 16, 2014 (CAVC Case Search). In light of the joint motion, in February 2015 the Board remanded the claim in order to comply with the JMR, and directed the agency of original jurisdiction (AOJ) to attempt to obtain a full and complete set of the Veteran’s service treatment records, particularly to include all service dental records, and to also obtain a medical-dental opinion that addresses the possible nexus between military service and the Veteran’s underlying teeth disorder. The Board remanded the matter a second time in October 2017, after it was determined that the requested development continued to be inadequate. Entitlement to service connection for a dental disorder for compensation purposes is remanded. Unfortunately, the development undertaken to date continues to be inadequate and fails to substantially comply with the Board’s February 2015 and October 2017 remand directives. As such, an additional remand is necessary before the Board can adjudicate the issues on appeal. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with,... ensure compliance); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (although under Stegall VA is required to comply with remand orders, substantial compliance, not absolute compliance, is required). As pointed out by the December 2014 JMR which triggered the prior remands, the available service records (STRs) disclosed that when the Veteran entered service in August 1961 he had all his teeth, which were noted as acceptable. Thereafter, the June 1962 separation examination noted 5 missing teeth. However, the available records from that period of active service failed to show the reason for the loss or extractions, and remand was deemed necessary to attempt to obtain the dental records pertaining to the loss or removal of such teeth. Additionally, the JMR had determined that it was necessary to obtain a VA medical-dental opinion addressing the possible nexus between military service and the Veteran’s underlying teeth conditions pursuant to 38 U.S.C. § 5103A(d)(1). Attempts were made to secure the complete STRs following the Board’s remands in February 2015 and October 2017, with records including Reserve records obtained and duplicate STRs. An April 2017 VA 21-3101 request for information indicated that all available requested records were shipped on March 1, 2016 for VBMS upload. However, no additional dental or medical records were obtained pertaining to the cause of the missing teeth noted on separation in June 1962. Of note, email correspondences received October 28, 2017 includes an e-mail from the Veteran dated in April 2017 which suggested that STRs from a period between 1954 and 1962 were destroyed. Later, a March 2018 Report of General Information raised questions as to whether the Veteran’s records are fire related. This suggests that the STRs for the pertinent period between the August 1961entrance examination and June 1962 separation examination were destroyed. The Board acknowledges VA’s heightened duty to assist a claimant where records are deemed fire related or otherwise lost. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005). Although the Veteran was sent duty to assist letters including a March 2018 letter re-sent in January 2019, requesting he submit treatment records and/or medical releases related to his claimed condition, he was not provided notice of alternative evidence that might support his claim, to include the necessary form for him to complete to assist the NPRC with searching for alternative records specific for his active period of service from 1961 to 1962, during which his teeth were apparently removed. This deficiency was pointed out by his representative in an April 2019 written argument. Additionally, to date, the AOJ has not issued a formal finding of unavailability of such records pursuant to 38 U.S.C. § 5103A (b)(2) and 38 C.F.R. § 3.159 (e). Consequently, such should be accomplished on remand. Furthermore, the development to date includes flawed VA opinions on the matter of etiology. First a July 2017 VA examination, which found no relationship between the current missing teeth numbers 17, 18, 19, and 20, and the August 1961 report of statements “poor teeth” and “teeth trouble” on entrance but without “confirmable teeth” did not include any discussion of the June 1962 separation examination noting missing teeth. The Board’s October 2017 remand requested an addendum VA examination to further address the etiology of the claimed dental disorder. Thereafter, a December 2019 VA examination gave a favorable opinion that the Veteran’s claimed dental disorder was at least as likely as not incurred in or claimed by the claimed in service injury, event or illness. The examiner reasoned that the Veteran was involved in an accident during active duty. However this rationale is flawed, as the Board notes that the Veteran has denied any sort of dental trauma or accident beyond his contentions that the dentist pulled his teeth unnecessarily, and he was not informed of the reason for the extraction as he reported in his May 2009 substantive appeal. Thereafter a November 2020 VA examination provided an unfavorable etiology opinion finding no chronicity of dental issues noted in medical records that could be attributed in the nexus. The examiner noted that the report of medical history dated in June 1962 was silent for any dental issues, while the report of medical history dated in August 1961 for enlistment noted “poor teeth.” The rationale further stated that subsequent medical examinations and reports of medical history did not note any chronic tooth or dental pain and that there were “no noted extractions.” However, this rationale ignored the findings of missing teeth noted in the June 1962 separation examination and is therefore inadequate. Thus, on remand, an addendum opinion must be obtained that includes consideration of the missing teeth noted on the June 1962 separation examination as well as any additional evidence to be obtained on remand. The matters are REMANDED for the following action: 1. Issue a formal determination that the Veteran’s STRs from his period of active duty between the entrance examination of August 1961 and separation examination of June 1962 do not exist or that further efforts to obtain such records would be futile, to include documenting the attempts made and why further attempts would be futile, as provided in 38 U.S.C. § 5103A (b)(2) and 38 C.F.R. § 3.159(e). 2. Provide the Veteran notice of alternative evidence which might support his claim, to include the necessary form for him to complete to assist the NPRC with searching for alternative records. 3. Thereafter following completion of the above, request the VA examiner who conducted the November 2020 VA dental examination to review the claims file. If the November 2020 VA dental examiner is unavailable, then another appropriate examiner should be requested to review the claims file. The examiner is asked to provide an addendum opinion which includes review of the evidence in the claims file, to specifically include review and discussion of the findings of missing teeth noted on the separation examination of June 1962, as well as the other STRs including the entrance examination and report of medical history of August 1961 and the subsequent records from his periods of reserve service. After reviewing the claims file the examiner is to address the following: (Continued on the next page)   Is any dental disorder shown or treated at any other time during the claim period (from August 2007 to the present) at least as likely as not (50 percent or greater probability) related to active service, to include any removal of his teeth during service? Consider all lay and medical evidence. Provide a clear and comprehensive rationale for any conclusions. If the requested opinion cannot be provided without resort to speculation, court cases require the examiner to explain why the opinion cannot be offered, and to state whether the inability is due to the absence of evidence or to the limits of scientific or medical knowledge. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Eckart 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.