Citation Nr: 21016141 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 15-24 343 DATE: March 19, 2021 ORDER Entitlement to service connection for a dental disability, claimed as periodontal disease, for compensation purposes, is denied. Entitlement to service connection for a noncompensable dental disability for the purpose of obtaining VA outpatient dental treatment under 38 C.F.R. § 17.161, is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder.   FINDINGS OF FACT 1. The Veteran has periodontal disease which is not a considered a disability for VA compensation purposes. 2. The Veteran’s periodontal disease was caused by in-service dental trauma. CONCLUSIONS OF LAW 1. The criteria for service connection for a dental disability 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 eligibility for VA outpatient dental treatment have been met. 38 U.S.C. §§ 1712, 5107; 38 C.F.R. §§ 3.303, 3.381, 4.150, 17.161. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Army from March 1969 to August 1973. These matters were most recently before the Board in February 2019. At that time, the Board reopened and remanded the claims to have the Agency of Original Jurisdiction (AOJ) schedule the Veteran for a VA examination to determine the nature and extent of her dental disability. VA examined the Veteran in November 2020. See November 2020 Dental and Oral Disability Benefits Questionnaire (DBQ). The appeal has returned to the Board for further appellate consideration. 1. Entitlement to service connection for periodontal disease for compensation purposes. A. Applicable Law Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may be awarded for missing teeth due to dental trauma or bone loss in service. The law and regulations also provide that treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are considered non-disabling conditions and may be considered service-connected solely for the purpose of determining entitlement to VA dental examination or outpatient dental treatment. See 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 17.161; see also Woodson v. Brown, 8 Vet. App. 352, 354 (1995). Generally, service trauma is defined as an injury or wound produced by an external physical force during a service member’s performance of military duties. See Nielson v. Shinseki, 607 F.3d 802 (Fed. Cir. 2010). The term dental trauma does not include, for example, the intended effects of treatment by VA. See VAOPGCPREC 5-97. Dental trauma does not include intended results of proper medical treatment provided by the military. See Nielson, 607 F.3d 802. In Nielson, the claimant had certain of his teeth removed due to infection, an intended effect of proper medical treatment. However, the Federal Circuit elaborated in Nielson that that an unintended result of medical treatment due to military negligence or malpractice could be “service trauma” pursuant to 38 U.S.C. § 1712 (a)(1)(C). Nielson, 607 F.3d at 808. Dental disabilities that may be awarded compensable disability ratings are set forth under 38 C.F.R. § 4.150. These disabilities include chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, 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. 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. VA regulations distinguish between “replaceable missing teeth” or periodontal disease and teeth lost as a result of “loss of substance of body of maxilla or mandible.” Simington v. West, 11 Vet. App. 41 (1998); 38 C.F.R. § 3.381. Under 38 C.F.R. § 3.381, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are to be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment as provided in 38 C.F.R. § 17.161. B. Discussion The Veteran contends that she developed problems with her gums and teeth while on active duty that led to her having to have multiple teeth extracted. The service treatment records (STRs) confirm that upon service entrance in March 1969, the Veteran had a normal dental examination. On an accompanying Report of Medical History, the Veteran denied having had any severe tooth or gum trouble. In February 1971, the Veteran was noted to have needed periodontal cleanings. The Veteran received temporary bridges between teeth numbered 5-8 and 9-11. A dental examination performed at service discharge in May 1975 revealed that the Veteran was missing teeth number 1, 2, 6, 10, 15-15, 30-32, 17-19, and had a bridge between teeth numbered 5-8 and 9-11. On an accompanying Report of Medical History, the Veteran reported having had severe tooth or gum trouble. Pursuant to the Board’s February 2019 remand, VA examined the Veteran to determine the nature and extent of her dental disability in November 2020. See November 2020 VA oral and dental conditions DBQ. After an oral examination, the VA examiner diagnosed the Veteran as having the following dental disabilities: severe periodontal disease; severe bone loss; missing multiple teeth; fractured teeth; defective restorations; and, resorbed edentulous ridges. The VA examiner opined that it was at least as likely as not that the Veteran’s dental conditions were incurred in or caused by an in-service event. The VA examiner concluded that the Veteran was documented to have needed periodontal cleanings in 1971 and on discharge paperwork, she stated that she had had gum and teeth problems. The VA examiner further indicated that untreated periodontal disease would eventually lead to severe bone loss and ultimately tooth loss. Thus, according to the VA examiner, the Veteran’s severe periodontal disease documented in service was at least as likely as not incurred in or caused by service, and was also at least as likely as not the cause of the eventual tooth loss, severe bone loss, bone density loss, fractured teeth, defective restoration #12 and resorbed ridges. The Board finds that the claim of entitlement to service connection for a dental disability, to specifically include periodontal disease, must be denied. Since periodontal disease is not a disability for which service connection can be granted for compensation purposes, the preponderance of the evidence is against the claim. Therefore, service connection for a dental disability, for compensation purposes, must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 2. Entitlement to service connection for periodontal disease for treatment purposes. 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. Those veterans having a service-connected, noncompensable dental condition or disability adjudicated as resulting from combat wounds or service trauma (Class II(a)) may be authorized any treatment indicated as reasonably necessary for the correction of such service-connected noncompensable condition or disability. See 38 C.F.R. § 17.161 (c). In this case, the January 2020 VA examiner determined that the Veteran’s periodontal disease was caused by in-service event. The VA examiner concluded that the severe periodontal disease documented in service was at least as likely as not incurred in or caused by service, and it is also was at least as likely as not the cause of the eventual tooth loss, severe bone loss, bone density loss, fractured teeth, defective restoration #12 and resorbed ridges. The examiner noted that the Veteran was documented to have needed periodontal cleanings in 1971 and on discharge paperwork, she stated that she had gum and teeth problems. The examiner explained that untreated periodontal disease will eventually lead to severe bone loss and ultimately tooth loss The Board concludes that this type situation is analogous to dental trauma as contemplated by 38 C.F.R. § 17.161(c). Thus, the criteria for establishing service connection for a noncompensable dental disability for purposes of receiving VA outpatient dental treatment under Class II (a) eligibility have been met. As the Veteran is entitled to Class II eligibility, she may be authorized for any treatment indicated as reasonably necessary for the correction or completion of treatment of this service-connected noncompensable condition or disability. See 38 C.F.R. § 17.161 (c). Accordingly, the Board finds that entitlement to service connection for a noncompensable dental disability for the purpose of obtaining VA outpatient dental treatment under 38 C.F.R. § 17.161 is warranted. REASONS FOR REMAND Service connection for an acquired psychiatric disorder is remanded. This issue is remanded for a new VA examination and to obtain missing medical records. The Veteran contends that a psychiatric disorder is due to service or a service-connected dental disability. The Board herein above denies service connection for a dental condition. Hence, service connection on a secondary basis cannot be granted as a matter of law for a psychiatric disorder secondary to a dental disability. See 38 C.F.R. § 3.310; DeLisio v. Shinseki, 25 Vet. App. 45, 59 (2011). This does not moot her claim of direct service connection, however, as she maintains that a psychiatric disorder arose during service due to her dental complications. This is a separate and distinct theory of entitlement involving direct service connection. Hence, it is not conditional on a grant of service connection for a dental disability. She also wrote in an October 1999 statement that her symptoms arose during service after being assigned to a unit where she felt isolated and harassed. To this end, a VA examiner in July 2016 opined that the Veteran’s acquired psychiatric disorder was less likely than not related to her active service. The VA examiner reasoned that, although the Veteran had complained of depression or excessive worry and frequent trouble sleeping at service separation in 1973, these were symptoms, not diagnoses of, a mental disorder, and there was no evidence of mental health evaluations or diagnoses of a mental disorder during service or until 1995, when the Veteran initially sought VA mental health treatment. The VA examiner, however, did not address the Veteran’s lay statements indicating that her symptoms continued after service. The VA examiner’s failure to consider a Veteran’s testimony, which is relevant evidence that he first noticed symptoms proximate in time to service, when formulating the opinion renders that opinion inadequate. See McKinney, 28 Vet. App. at 30. Moreover, it is not clear that the RO made all necessary efforts to obtain STRs related to mental health treatment and post-service VA medical records. This is significant because the VA examiner materially relied on a lack of documented symptoms, where it appears there may be missing medical records. First, she reported at the July 2016 VA examination that she developed a depressive disorder while stationed in Walter Reed Hospital, where she worked as translator, and was referred to mental health and was given treatment, including prescribed medication. It not clear that the RO made a separate request for in-service records of mental health treatment. See VBA Manual M21-1, III.iii.2.A.1.e. Types of Records Included in STRs; VBA Manual M21-1, IV.ii.1.D.2.a. Location of In-Service Mental Health Treatment Records VBA Manual M21-1, III.iii.2.D.3.a. PIES Request Codes Beginning With “C”; III.iii.2.B.4.e. How to Request Clinical Records from NPRC. She also reported at the VA examination that she had continued psychiatric treatment post-discharge at the Washington VAMC till 2001. The file includes medical records from this facility from 1995 to 1998, but her statement to the VA examiner indicates further treatment. These records have not been obtained. The matters are REMANDED for the following action: 1. Contact the appropriate service department and/or records custodian(s), to include the National Personnel Records Center, with a request for copies of all outstanding service treatment records, including mental health records. 2. Obtain the Veteran’s outstanding VA treatment records, including records of all treatment obtained at the Washington VAMC through 2001. The request for records must include any records obtained through VA’s Choice program and all paper records scanned into her electronic health record. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any psychiatric condition. The examiner is asked to opine on whether any psychiatric disorder is at least as likely as not related to an in-service injury, event, or disease. In answering these questions, the examiner is asked to consider the statements from the Veteran indicating that symptoms started during service. The examiner is asked to explain why her statements make it more or less likely that a current condition started during service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran’s recollection of her symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. Corey Bosely Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Carole Kammel, 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.