Citation Nr: 21015840 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 14-34 957 DATE: March 18, 2021 ORDER Entitlement to service connection for loss of teeth for accrued benefit purposes is denied. REMANDED Entitlement to service connection for a skin condition for accrued benefit purposes is remanded. FINDINGS OF FACT 1. The evidence of record does not show that the Veteran had a dental condition involving loss of substance of body of maxilla or mandible, or of the soft tissue surrounding that region, or had a dental disability resulted from in-service trauma necessary for service connection for compensation purposes. 2. With the death of the Veteran, treatment for his dental problems is moot. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for loss of teeth for compensation purposes have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.381, 4.150. 2. The criteria for entitlement to service connection for a noncompensable dental disability for purposes of receiving VA outpatient dental treatment is dismissed. 38 U.S.C. §§ 1712, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.381, 4.150, 17.161. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Army from January 1972 to January 1975. The Veteran died in January 2020. The Appellant is his surviving spouse. The Appellant was recognized as the Veteran’s substitute on February 27, 2020. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2013 and a September 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before a Veterans Law Judge (VLJ) in June 2016. A transcript of the hearing is associated with the claims file. The Veteran was notified in 2020, that the VLJ who conducted the 2016 hearing was no longer available to participate in the adjudication of the Veteran’s claim. He was offered the opportunity for a new hearing. The Veteran did not respond to the clarification letter as to whether he wanted a hearing before another VLJ. As such, the Board assumes that the Veteran does not want another Board hearing; therefore, the Board may proceed with adjudication of the issues on appeal. An April 2018 Board decision, in pertinent part, denied service connection for loss of teeth. The Veteran appealed the Board’s April 2018 decision to the United States Court of Appeals for Veterans Claims (Court). In August 2019, the Court issued a Memorandum decision, that vacated the April 2018 rating decision, The Court determined that the claim for loss of teeth was inextricably intertwined with a claim for service connection, which had been remanded for additional development. The Court decision noted that the Veteran had argued that his loss of teeth was the result of his sinusitis disability. The loss of teeth issue was Remanded by the Board in April 2020 along with intertwined issues of service connection for sinusitis and acid reflux. A February 2019 Board decision denied service connection for a skin condition. In June 2020, the Court granted the parties’ Joint Motion for Remand (JMR) that moved to vacate the February 2019 Board decision and remand it for additional development. The parties agreed that the Board had failed to address the Veteran’s statements concerning the qualification of the VA examiner who had conducted an October 2018 skin examination. SERVICE CONNECTION Entitlement to service connection for loss of teeth for accrued benefit purposes is denied. The Veteran sought compensation for a dental disorder. Specifically, he has argued that his acid reflux has worn away the enamel of his teeth along the gum line, causing the loss of several teeth. Service connection for gastroesophageal reflux disease has been established. Dental disabilities are treated differently than medical disabilities in the VA benefits system. Generally, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses and periodontal disease will be considered service-connected solely for the purpose of determining entitlement to dental examinations or outpatient dental treatment under the provisions of 38 C.F.R. Chapter 17. 38 C.F.R. § 3.381. Service connection for loss of teeth are unique claims as the Veteran must meet the requirements under 38 C.F.R. § 4.150 for compensation purposes. Dental disabilities which may be awarded compensable disability ratings are set forth under 38 C.F.R. § 4.150. These disabilities include chronic osteomyelitis (infection of the bone) or osteoradionecrosis (bone death due to radiation) of the maxilla (upper jaw) or mandible (lower jaw), loss of the mandible, nonunion or malunion of the mandible, limited temporomandibular motion, loss of the ramus, loss of the condyloid or coronoid processes, loss of the hard palate, loss of teeth due to the loss of substance of the body of the maxilla or mandible and where the lost masticatory surface cannot be restored by suitable prosthesis, when the bone loss is a result of trauma or disease but not the result of periodontal disease. See 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. Dental treatment, even extractions, during service does not constitute dental trauma. See VAOPGCPREC 5-97, 38 C.F.R. § 3.306 (b) (1). It should be noted that for the purposes of determining whether a veteran has treatment eligibility, the term "service trauma" does not include the intended effects of treatment provided during the Veteran's military service. The regulations are intended to cover dental trauma involving external, sudden-force injury, such as a combat wound to the teeth and jaw. See VAOPGCPREC 5-97 (1997); Nielson v. Shinseki, 607 F.3d. 802 (Fed. Cir. 2010). A claim for service connection is also considered to be a claim for VA outpatient dental treatment. See Mays v. Brown, 5 Vet. App. 302 (1993). Service connection for purposes of outpatient dental treatment may be granted for a dental condition of any tooth and/or and periodontal tissue shown by the evidence to have been incurred in or aggravated by service, so long as the veteran falls under one of a number of specific classifications. See 38 C.F.R. § 3.381 (a) The portion of VA’s Schedule for Rating Disabilities addressing dental and oral conditions was revised effective September 10, 2017. The new regulations involve benign or malignant neoplasms that are not applicable to the Veteran’s claim and the other changes involved only clarification of the rating terms. The Veteran was not seeking service connection for impairment of the mandible, loss of a portion of the ramus, loss of a portion of the maxilla, or similar disability manifested by bone loss. Moreover, upon review of the treatment records, there is no indication that the Veteran’s dental claimed disorder involved symptoms consistent with loss of substance of the body of the mandible or bone loss in the maxilla or mandible region. The record does not contain any lay statements indicating that the Veteran had loss of substance of the body of the mandible or bone loss in the maxilla or mandible region from his service-connected sinusitis or acid reflux. For that reason, his claim for service connection must be denied as a matter of law. In cases such as this, where the law and not the evidence is dispositive, the claim should be denied because of the lack of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). A claim for accrued benefits based on substitution is a claim for periodic monetary monthly benefits i.e. a claim for compensation purposes. The Veteran died in January 2020. The receipt of treatment has thereby become a moot question. Again, where the law and not the evidence is dispositive, the claim should be denied because of the lack of legal merit or the lack of entitlement under the law. Thus, with respect to a claim for entitlement to outpatient dental treatment, this aspect of the appeal is dismissed. For the foregoing reasons, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt doctrine is not for application. REASONS FOR REMAND Entitlement to service connection for a skin condition for accrued benefit purposes is remanded In Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019), the Federal Circuit held that once the Veteran raises a challenge to a VA examiner's competency to the Board, the presumption of competency is rebutted, and VA must satisfy its burden of persuasion as to the examiner's qualifications. The Federal Circuit also held that once the request is made for information as to the competency of the examiner, a veteran has the right, absent unusual circumstances, to the curriculum vitae and other information about the qualifications of a medical examiner as mandated by the VA's duty to assist. Id at 1308. In October 2018 the Veteran underwent a VA Skin disease examination by a Certified Family Nurse Practitioner. In a November 2018, the Veteran stated that he did not feel the reviewer was qualified to conduct the examination. He argued that the examiner failed to address the recurring rashes. He intimated that the oversight of this evidence caused him to question the examiner’s competency to conduct the examination. Considering the Federal Circuit's decision in Francway, the Board finds that a remand is warranted for further development. The matter is REMANDED for the following action: Undertake reasonable efforts to obtain curriculum vitae and other credentialing information for the examiner who completed the October 20018 VA Skin Diseases examination. Such documents which may be redacted as deemed warranted and added to the claims file. Provide a copy of the information to the Appellant and her representative. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Smith, 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.