Citation Nr: 21014635 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 19-11 322 DATE: March 15, 2021 ORDER Service connection for compensation purposes for a dental disability of the teeth is denied. Service connection for compensation purposes for a dental disability of the gums is denied. Service connection for compensation purposes for a dental disability of the jawbones is denied. FINDING OF FACT The Veteran does not have a current dental disability of the teeth, gums, or jawbones for which service connection for compensation purposes can be granted. CONCLUSION OF LAW The criteria for service connection for a dental disability of the teeth, gums, or jawbones for compensation purposes have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.150. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1968 until his honorable discharge in March 1970. 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). This case comes before the Board on appeal from a March 2015 rating decision by the Columbia, South Carolina, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied service connection for “teeth,” “gums,” and “bones.” The Board notes that prior to the issuance of the rating decision, the Veteran did not respond to a request from the RO to clarify what he meant by claiming service connection for “bones.” See February 2015 Correspondence. As such, the RO treated the Veteran’s claim as one for arthritis based on review of all evidence. In January 2021, 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 and his representative clarified that the Veteran’s claim for service connection for “bones” referred to jawbones in association with his dental claims, similar to his dental claims for service connection for “teeth” and “gums.” January 2021 Board Hearing Transcript, at 2–3. Furthermore, the Veteran specifically testified that he was only seeking service connection for compensation purposes. Id. at 11. Characterization of the Veteran’s Claims A claim for service connection may be expanded beyond a veteran’s lay description of a disability to include any disability “that may reasonably be encompassed by several factors including: the claimant’s description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim.” Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Based on the Veteran’s and his representative’s assertions during his Board hearing, the Board finds his service-connection claim for “bones” is properly characterized as one for service connection for compensation purposes for a dental disability of the “jawbones.” Notably, when the Board has jurisdiction over a claim, “it has the authority to address all issues related to that claim, even those not previously decided by the RO.” Jarrell v. Nicholson, 20 Vet. App. 326, 332 (2006). Because the RO adjudicated the claim, albeit on an incorrect notion, the Board finds it still has jurisdiction to adjudicate the claim as it is based on the same evidence as the Veteran’s claims for service connection for his “teeth” and “gums,” which the RO decided within the same rating decision. In addition, rather than claims for service connection for “teeth” and “gums,” the Board finds the most appropriate characterization of the Veteran’s claims, as with his jawbones, is a claim for service connection for compensation purposes for a dental disability of the teeth and gums, respectively. See Clemons, 23 Vet. App. 1. Evidentiary Standards In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. 38 U.S.C. § 7104(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. §§ 1154(a); 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128‒29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims. Service Connection 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 other medical conditions in multiple respects. The Board must construe a claim for service connection for a dental condition as both a claim for (1) compensation and (2) VA outpatient treatment. See Mays v. Brown, 5 Vet. App. 302, 306 (1993). In this case, however, the Veteran specifically testified that he was seeking service connection only for compensation purposes. No evidence indicates a contrary intent, nor does evidence within the record reasonably suggest the Veteran was seeking service connection for VA outpatient dental treatment at any point. Thus, the Board will respect the Veteran’s intent and address his claims for service connection with respect only to compensation. Compensation is only available for certain types of dental and oral conditions. See Simington v. West, 11 Vet. App. 41, 44 (1998); 38 C.F.R. § 4.150 (“Schedule of ratings – dental and oral conditions”). Generally speaking, section 4.150 permits compensation for disabilities related to the maxilla or mandible, including nonunion, malunion, and loss of use; loss of the condyloid and coronoid processes; and loss of the hard palate. 38 C.F.R. § 4.150, Diagnostic Codes (DCs) 9900 to 9911, 9914 to 9916. With respect to teeth loss, compensation is paid only when the tooth loss is (1) “due to loss of substance of [the] body of maxilla or [the] mandible,” and (2) where such bone loss results “through trauma or disease such as osteomyelitis, and not to the loss of the alveolar process as a result of periodontal disease.” 38 C.F.R. § 4.150, Diagnostic Code 9913 & Note. “Trauma” is not defined within the Note to DC 9913. In Nielson v. Shinseki, the U.S. Court of Appeals for the Federal Circuit interpreted the phrase “service trauma” within 38 U.S.C. § 1712—the statutory authority for determining VA outpatient dental care—to mean “an injury or wound produced by an external physical force during the service member’s performance of military duties” and not to include “the intended result of proper medical treatment.” 607 F.3d 802, 808 (Fed. Cir. 2010). The court went on to hold, however, that, although this definition of trauma excludes the intended result of proper medical treatment, it is possible that “an unintended result of medical treatment due to military negligence or malpractice” may qualify as a “service trauma.” Id. The Board finds the respective substance of section 1712 and DC 9913 concern substantially similar matters, dental trauma in relation to VA benefits. Accordingly, the Board adopts the definition from Nielson as a reasonable definition of “trauma” within the Note to DC 9913. Analysis As the disposition for each of the claims for service connection (teeth, gums, and jawbones) is the same, the Board will address them together. The Veteran asserts that approximately six months prior to his separation from service, he received lead dental fillings while serving in Korea. During his active service, he did not experience any dental problems. The Veteran’s service treatment records (STRs) do indicate that the Veteran served in Korea in 1969. His dental STRs indicate he did receive fillings for multiple teeth between January 1969 and December 1969. His STRs do not indicate the substance used for his fillings, nor do other medical records contained within the Veteran’s claims file indicate he received lead fillings. Approximately three years after his separation from service, he began to experience lumps on the roof of his mouth. He visited a private dental facility and was told that lead from his fillings had leaked into his gums. He was told that he needed all of his teeth removed immediately. The Veteran testified he had his teeth pulled the same day. Sometime after having his teeth pulled, the Veteran experienced his jawbones protruding through his gums. His gums were deteriorating. He could not use his bottom dentures. The Veteran testified he did not have a regular dentist at that time. Instead, he “went to different dentist places.” January 2021 Board Hearing Transcript, at 7. Unfortunately, the Veteran did not have his dental records from the dentist who extracted his teeth and who linked his lead fillings to his dental conditions. Id. at 8. He learned that person is now deceased, and the records are unavailable. Id. When asked by his representative about whether a doctor “actually” made a connection between his fillings and dental conditions, the Veteran was not sure if the person who told him about his diagnosis was a doctor or not. Id. at 10. He testified, “she worked in there where you clean teeth and take care of the mouth.” Id. The requirement for a veteran to have a “current disability” is satisfied when he or she has a disability (1) at the time a claim for VA disability compensation is filed or (2) has a disability during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). For the reasons that follow, the Board finds there is an absence of evidence of a current dental disability of the teeth, gums, or jawbones corresponding with a disability listed within 38 C.F.R. § 4.150. Therefore, service connection for compensation purposes for a dental disability for teeth, gums, and jawbones is not warranted. As to the medical evidence of record, at the time of his military exit examination in 1991, the Veteran did not report any teeth, gum, or jawbone issues, nor did the clinical evaluator document any such issues. This is consistent with the Veteran’s testimony before the Board that he did not suffer any dental issues during service. Id. at 5. The Board has reviewed the Veteran’s VA medical records and did not find documentation of a dental condition of the teeth, gum, or jawbones that was diagnosed prior to or following his claim for service connection. Instead, the Veteran’s VA medical records only recorded his own report of teeth extraction and receipt of lead fillings while in service. See May 2002 VA Gastroenterology Outpatient Consult; July 2018 VA Mental Health Triage Note. The Board has also reviewed the Veteran’s private dental treatment records associated with his claims file. His private dental treatment records begin in December 2008. This is consistent with the Veteran’s testimony. Id. at 9. The records do not address the Veteran’s teeth fillings, cause of his teeth extraction, or whether he has a current dental disability. The Veteran’s private dental records indicate he had all of his teeth extracted and that he is in receipt of dentures. His private dental records do not indicate that his tooth loss was due to loss of substance of body of maxilla or mandible through trauma or disease. 38 C.F.R. § 4.150, DC 9913 & Note. Nor do his private dental treatment records indicate a current disability of his teeth, gums, or jawbones consistent with the remaining rating criteria in section 4.150. Overall, there is no medical evidence that the Veteran suffers from a current dental disability involving his teeth, gums, or jawbones that corresponds with a disability listed in 38 C.F.R. § 4.150. As to the lay evidence of record, the Veteran has repeatedly stated that he was provided lead fillings while in service. At the time he received his fillings in service, however, he did not know they were lead fillings. January 2021 Board Hearing Transcript, at 4. He only discovered that he received lead fillings when the first dental professional he visited following service told him he had lead fillings, which she indicated caused his then-existing dental issues. Id. That dental professional is now deceased, and any records associated with the Veteran’s dental treatment from that professional are unavailable. Id. at 8. While the Veteran is competent to report what he was told by this dental professional, the Board finds the dental professional lacks credibility. The Veteran was unable to offer evidence about the dental professional’s credentials. He testified that he was unsure whether the professional was a “doctor or not.” Id. at 10. He testified that “she worked . . . where you clean teeth and take care of your mouth.” Id. Based on this testimony, the Board is unable to determine whether the professional was a dentist, dental hygienist, or something else. This is significant because the ability to diagnose the Veteran with lead fillings and then medically link his then-existing dental issues with his lead fillings requires certain medical knowledge, training, and experience. See Jandreau v. Nicholson, 493 F.3d 1372, 1377 (Fed. Cir. 2007) (noting general competence of laypersons to testify as to symptoms but not medical diagnosis). Without sufficient evidence to determine the dental professional’s credentials (if she was indeed a dental professional) the Board finds that the Veteran’s statements and testimony that he received lead fillings resulting in his teeth, gum, and jawbone issues is not credible and not probative. See Fagan v. Shinseki, 573 F.3d 1282, 1286 (2009) (stating that the claimant has the burden to “present and support a claim for benefits” and noting that the benefit of the doubt standard in [38 U.S.C. §] 5107(b) is not applicable based on pure speculation or remote possibility). Notably, no other dental or medical professional has indicated or reasonably suggested the Veteran received lead fillings that resulted in subsequent teeth, gum, or jawbone issues. Finally, the Board finds the Veteran is competent to report his sensations associated with his teeth, gums, and jawbones, to include pain, physical characteristics, and lay observations. The Board finds his statements that he experienced lumps in his mouth and associated physical sensations credible and probative. He testified that he experienced the bone in his jaw coming out of his gums, which caused gum deterioration. January 2021 Board Hearing Transcript, at 7. The Board finds the Veteran competent to report what he observed and felt, but there is no evidence that he has medical training, knowledge, or experience to diagnose dental conditions or offer medical opinions on the etiology of dental conditions. In this respect, he is not competent. There is no competent lay or medical evidence that approximate to the filing of his claim on appeal or during his claim on appeal that he suffered from teeth, gum, or jawbone exposure or deterioration consistent with the disabilities within 38 C.F.R. § 4.150. Nor is there any medical evidence that such conditions, if they did exist at some point, were related to the Veteran’s lead fillings or subsequent teeth extraction. Absent evidence of a current dental disability corresponding with one of those listed within 38 C.F.R. § 4.150, service connection for compensation purposes for a dental disability for teeth, gums, and jawbones is not warranted. Although a VA examination nor medical opinion was obtained in this case, the Board finds that VA was not under an obligation to obtain either. Section 5103A of Title 38 of the United States Code, captioned “DUTY TO ASSIST,” mandates that a medical examination be provided in disability compensation claim cases only when: (1) There is competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; (2) There is evidence establishing that an event, injury, or illness occurred in service or within an applicable presumptive period, or the Veteran has a service-connected disability; and (3) There is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) There is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Each of the elements must be met. (Continued on the next page)   The first element, competent evidence that the claimant has a current disability, requires (1) an assessment of whether there is evidence of a current disability or persistent or recurrent symptoms thereof and (2) an assessment that such evidence is competent. McLendon, 20 Vet. App. at 81; 38 U.S.C. § 5103A(d)(2)(A). For the same reasons previously discussed, the Board finds that there is not competent medical or lay evidence that the Veteran had a current disability approximate to the filing of his claim or during the pendency of his claim that would be consistent with the criteria within 38 C.F.R. § 4.150. At most, the medical and lay evidence indicates the Veteran currently has dentures due to teeth extraction that occurred as early as 2000. See Private Dental Records (indicating dentures in 2000). 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.