Citation Nr: 21020881 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 09-45 752 DATE: April 8, 2021 REMANDED Entitlement to service connection for a dental disorder for the purpose of obtaining VA compensation is remanded. Entitlement to service connection for a noncompensable dental disorder for the purpose of obtaining VA outpatient dental treatment under 38 C.F.R. § 17.161 is remanded. REASONS FOR REMAND These matters have been remanded three times—in April 2012, April 2018, and July 2020. Upon review of the file, the Board finds that another remand is required as the Agency of Original Jurisdiction (AOJ) has not ensured compliance with the remand directives. Of note, the Veteran first filed his claim in October 2008 and has been waiting for the Board to make a decision in his appeal for over a decade. As such, the Board requests that the AOJ expedite this matter to the extent possible. The remand directives instructed the examiner to presume that the Veteran sustained a facial injury while in service that resulted in sufficient force to dislodge his maxillary bridge of teeth. An opinion was provided by a VA examiner in December 2020. Unfortunately, not only did the examiner fail to presume the in-service trauma and resulting in-service injury, she opined against it, failed to consider relevant service treatment records, and mistakenly referred to the dental disorder as a disorder that pre-existed service. As such, remand for a new opinion is required. The Board acknowledges that the December 1970 entrance examination report, listed the following: “teeth carious, some absent, pyorrhea.” However, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease (pyorrhea) cannot be service connected for purposes of compensation. 38 C.F.R. § 3.381. As these were the only dental disorders listed, the Board finds that the Veteran was healthy upon entrance. The Board also acknowledges the Veteran’s reporting of having ever had or having then severe tooth and or gum trouble. Reporting alone does not equate to a condition recorded in examination reports. The Board recognizes the statement made by the December 2020 VA examiner, wherein she stated the Veteran’s defective bridge was diagnosed and treated, in September 1971, prior to his October 1971 head injury. First, there is a September 1971 dental service questionnaire of record, but it reflects the reporting of a partial plate, and not a diagnosis of a defective bridge. Second, although there is an October 1971 service treatment that shows a head injury, there are service treatment records dated March 1972, April 1972, and September 1972 that reflect the Veteran suffered headaches as a result of an accident that occurred months prior. The Board also recognizes the December 2020 VA examiner’s assessment that the December 1970 entrance examination showed existing bridge #6 through #11. Although this report, on first glance may appear to be part of the December 1970 examination report, on closer review this report is not part of the entrance examination and is dated September 1971. Additionally, it shows services rendered between September 1971 and July 1972. Additionally, as stated in the July 2020 remand, the remand directives instructed the AOJ to refer the claim for dental treatment to the Veterans Health Administration (VHA) to determine if the Veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161. The record does not show that the claim has been referred to VHA to decide on the question of basic eligibility for dental treatment purposes. Of note, there is nothing listed in the December 2020 supplemental statement of the case to illustrate that any efforts were made to refer the claim for dental treatment. In 2012, the regulations applicable to service connection for dental conditions for treatment purposes were revised in order to clarify existing regulatory provisions and to reflect the respective responsibilities of the VHA and Veterans Benefits Administration (VBA) in determinations concerning eligibility for dental treatment. The amended version of 38 C.F.R. § 3.381 provides that VBA will adjudicate a claim for service connection of a dental condition for treatment purposes after VHA determines a Veteran meets the basic eligibility requirements of § 17.161 of this chapter and requests VBA make a determination as to certain questions, including, but not limited to: (1) former prisoner of war status; (2) whether the Veteran has a compensable or noncompensable service-connected dental condition or disability; (3) whether the dental condition or disability is a result of combat wounds; (4) whether the dental condition or disability is a result of service trauma; or (5) whether the Veteran is totally disabled due to a service-connected disability. 38 C.F.R. § 3.381. As adjudication of the dental claim for treatment purposes by VHA must be completed prior to any adjudication of a service connection claim for treatment purposes by the VBA, and as the prior remand directive ordered such, appellate review of that issue is not proper at this time. As such, a remand is necessary to order the case referred to the VHA for an initial determination as to the Veteran’s eligibility for dental treatment. Such should occur prior to the return of this claim to the Board. The matters are REMANDED for the following action: 1. Refer the Veteran’s claim of entitlement to service connection for dental treatment purposes to VHA for adjudication of Class eligibility in the first instance under 38 C.F.R. § 3.381 (effective February 29, 2012). 38 C.F.R. § 17.161. 2. If the VAMC determines that the Veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161 and requests that VBA make a determination, readjudicate the claim. 3. The AOJ should also schedule the Veteran for an appropriate VA dental examination. The entire electronic claims file, to include a complete copy of this remand, should be made available to and reviewed by the VA examiner. Review of such should be indicated in the report. All appropriate tests and studies should be performed, and all clinical findings should be reported in detail. A complete history of any dental injury should be noted in the report. Following a physical examination of the Veteran, the VA examiner should provide the following findings and opinions: (a.) Identify any current dental disorders (from October 2008 to present), to include loss of whole or part of the mandible, nonunion or malunion of the mandible, loss of whole or part of the ramus, loss of whole or part of the maxilla, nonunion or malunion of the maxilla, loss of the condyloid or coronoid process, loss of any part of the hard palate, or any tooth loss. If the Veteran does not have loss of whole or part of the mandible, nonunion or malunion of the mandible, loss of whole or part of the ramus, loss of whole or part of the maxilla, nonunion or malunion of the maxilla, loss of the condyloid or coronoid process, loss of any part of the hard palate, or any tooth loss the examiner should so state. (b.) For each identified dental disorder (loss of whole or part of the mandible, nonunion or malunion of the mandible, loss of whole or part of the ramus, loss of whole or part of the maxilla, nonunion or malunion of the maxilla, loss of the condyloid or coronoid process, or loss of any part of the hard palate) the examiner should opine as to whether it is as least as likely as not (a 50 percent or greater probability) that any identified dental disorder is related to the Veteran’s active military service, to include his in-service presumed trauma? (c.) If tooth loss is found, the VA examiner should determine whether there is also bone loss (or loss of the substance of the body) of the maxilla or mandible. (d.) If the answer to paragraph (c) is affirmative (i.e., there is bone loss or loss of the substance of the body of the maxilla or mandible), the examiner should opine as to whether it is as least as likely as not (a 50 percent or greater probability) that this bone loss caused the tooth loss? (e.) If the answer to paragraph (d) is affirmative, the examiner should opine as to whether it is as least as likely as not (a 50 percent or greater probability) that this bone loss was caused by in-service trauma or disease? In rendering the findings and opinions in paragraphs (a) through (e), the VA examiner is to presume, as fact, that the Veteran sustained a facial injury while in service, and that the force of this injury was great enough that it dislodged his maxillary bridge of teeth #6-11. The examiner should expressly note review of, and consideration of the October 2002 letter authored by a private dentist (VBMS, document labeled Third Party Correspondence, receipt date November 4, 2002, page 1 of 5). The examiner is advised that it is presumed that the Veteran suffered in-service trauma that resulted in the in-service injury of the dislodgment of his maxillary bridge of teeth #6-11. The examiner is also advised that record illustrates, and the Board has made a finding that the Veteran’s dental disorder did not pre-exist his military service. The term ”at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. 4. The AOJ shall ensure that the opinions comply with the remand directives. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Talamantes, 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.