Citation Nr: 21025843 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 18-28 201 DATE: April 29, 2021 ORDER New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for a dental disability for compensation purposes is granted. Entitlement to service connection for a dental disability for compensation purposes, claimed as filing down of two teeth on both sides with bridge replacement, is denied. FINDINGS OF FACT 1. In a November 2009 rating decision, the RO denied the Veteran’s claim of service connection for a dental disability for compensation purposes. Although he was duly notified of the RO’s decision and his appellate rights, the Veteran did not initiate an appeal within the applicable time period nor was new and material evidence received within one year. 2. Evidence received since the final November 2009 rating decision denying entitlement to service connection for a dental disability relates to an unestablished fact necessary to substantiate the claim and, presuming its credibility, raises a reasonable possibility of substantiating the claim for service connection for a dental disability for compensation purposes. 3. The Veteran’s dental disability is not a disability for which service connection for compensation purposes may be granted. CONCLUSIONS OF LAW 1. The November 2009 rating decision denying service connection for a dental disability for compensation purposes is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received to warrant reopening of the claim of service connection for a dental disability. 38 U.S.C. § 5107, 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for a dental disability for compensation purposes have not been met. 38 U.S.C. §§ 1110, 1712; 38 C.F.R. §§ 3.303, 3.381, 4.150. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training from June to September 1997, and on active duty from January 2003 to September 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which, inter alia, confirmed and continued the previous denial of service connection for a dental disability. In January 2021, the Veteran testified at a tele-hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board notes that in a February 2021 rating decision, the RO established basic eligibility for service connection for dental treatment purposes of the Veteran’s dental disability. 1. New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for a dental disability for compensation purposes is granted. In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. For claims to reopen such as this one, filed on or after August 29, 2001, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist. Id. at 118; but see Villalobos v. Principi, 3 Vet. App. 450 (1992) (evidence that is unfavorable to a claimant is not new and material). In May 2009, the Veteran submitted an original application for VA compensation benefits, seeking service connection for a dental disability. In a final November 2009 rating decision, the RO denied the claim, finding that the evidence did not show that the Veteran sustained an injury affecting the mouth or teeth during active duty. In reaching its decision, the RO considered the Veteran’s service treatment records (STRs), which noted that the Veteran underwent a root canal in December 2007 and was advised to wait until he returned to the U.S. before a crown could be inserted. His STRs also showed that he continued to have infections in this area. The RO also considered an October 2009 VA examination indicating that the Veteran’s tooth number 24 was extracted due to infection. The record on appeal shows that the Veteran was duly notified of the RO’s decision and his appellate rights. He did not, however, initiate an appeal within the applicable time period nor was new and material evidence received within one year of notification of the November 2009 rating decision. The Veteran does not contend otherwise. Thus, the November 2009 rating decision is final and not subject to revision on the same factual basis. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this appeal, the Veteran seeks to reopen his claim of service connection for a dental disability for compensation purposes. As noted above, despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The Board notes that in the December 2017 rating decision currently on appeal, the RO reopened the claim and denied it on the merits. Despite the RO’s finding, the Board is obligated by statute (38 U.S.C. §§ 5108, 7104(b)) to address whether new and material evidence has been submitted prior to addressing the merits of the claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Thus, despite the RO’s finding, the Board must make a determination of whether new and material evidence has been presented to reopen the claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In order to determine whether new and material evidence has been received and the claim may be reopened, the Board has reviewed the entire record, with particular attention to the additional evidence received since the final November 2009 rating decision. After reviewing the record, the Board finds that the additional evidence received is new and material within the meaning of 38 C.F.R. § 3.156. The additional evidence received since the November 2009 rating decision includes VA treatment records noting that the Veteran received an implant of tooth number 24 immediately after extraction. The records also note that the implanted tooth number 24 failed twice, had to be removed, and a bone graft had been performed. The records further note that during placement of a 3rd implant, the alveolar ridge split along the lingual aspect of the crest. The implant was removed and a puros allograft with a titanium reinforced membrane was placed over it. See 2009-2011 VA treatment records. The additional evidence also includes a December 2018 private clinical record indicating that the Veteran had a current three-unit fixed bridge from tooth number 23 to tooth number 25. Also noted was that a cone beam CT scan showed a missing tooth number 24 with advanced bone loss and a knife edged ridge and widening of periodontal ligament space around abutment tooth. See December 2018 Progress Note received January 2019. After reviewing the record, the Board finds that new and material evidence has been received sufficient to reopen the claim. Specifically, the VA and private clinical records noting that the Veteran received 3 failed implants of tooth number 24, as well as a bone graft, a cone beam CT scan showing a missing tooth number 24 with advanced bone loss and a knife edged ridge and widening of periodontal ligament space around abutment tooth, and a current three-unit fixed bridge from tooth number 23 to tooth number 25, were not before agency decision-makers at the time of the November 2009 rating decision. These records are therefore new, and directly address unestablished facts necessary to substantiate the claim of service connection for a dental disability. When presumed credible, they raise a reasonable possibility of substantiating the claim and trigger the VA’s duty to assist. Accordingly, the standards under 3.156(a) have been met and the claim is reopened. See Shade, 24 Vet. App. at 117. 2. Entitlement to service connection for a dental disability for compensation purposes is denied. The Veteran seeks service connection for a dental disability, which he contends occurred during active duty when he was getting out of a Humvee. He contends that he chipped his front tooth which required a root canal and eventually led to extraction of the tooth and several subsequent dental procedures. See January 2021 Transcript of Hearing, pages 7-9. Under VA regulations, service connection for compensation purposes is only available for specified dental and oral conditions which are specifically delineated in 38 C.F.R. § 4.150. The dental and oral conditions which may be service connected for VA compensation purposes include disabilities such as chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible; and loss of teeth due to the loss of substance of the body of the maxilla or mandible. 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not compensable disabilities. 38 C.F.R. § 3.381(b). The Board notes that effective September 10, 2017, VA amended portions of the Rating Schedule that address dental and oral conditions for the purpose of ensuring that it used current medical terminology and providing updated criteria for evaluating dental and oral conditions for disability rating purposes. The Board has reviewed these amendments but notes that they are not outcome determinative to the instant case, as neither version provides compensation for replaceable missing teeth. See 82 Fed. Reg. 36080, 36082 (August 3, 2017). An April 2007 entry in the Veteran’s service treatment records (STRs) noted the Veteran’s complaints that “[his] tooth really hurts.” The assessment was necrotic polyp of tooth number 24, for which a pulpectomy was performed. See April 2007 Chronological Record of Dental Care. A September 2007 entry noted that a complete RCT (root canal therapy) for tooth number 24 had been performed. See September 2007 Chronological Record of Dental Care. A June 2008 entry noted that the Veteran had been seen the day prior and had been prescribed Amoxicillin for 7 days for a possible recurrent periapical abscess of tooth number 24. See June 2008 Chronological Record of Dental Care. The Veteran was afforded a VA examination in October 2009. The Veteran reported that he fractured his tooth while he was in Iraq. He reported that root canal therapy was completed, however the tooth continued to become infected. The Veteran reported that his tooth fractured vertically in June 2009 and had to be extracted, at which time a dental implant was placed. He reported that the implant became infected and was removed in July 2009. He reported that he currently wore a removable temporary acrylic partial. The examiner noted that the Veteran suffered trauma and subsequently lost tooth number 24, for which a temporary removable partial had been made. The examiner also noted that a more permanent prosthesis needed to be made. A panoramic X-ray performed in connection with the examination was within normal limits. VA treatment records noted that the Veteran received an implant of tooth number 24 immediately after extraction. See 2009 VA treatment records. VA treatment records also noted that the implanted tooth number 24 failed twice, had to be removed, and a bone graft had been performed. See 2010 VA treatment records. VA treatment records further noted that during placement of a 3rd implant, the alveolar ridge split along the lingual aspect of the crest. The implant was removed and a puros allograft with a titanium reinforced membrane was placed over it. See 2011 VA treatment records. A December 2018 private clinical record indicated that the Veteran had a current three-unit fixed bridge from tooth number 23 to tooth number 25. Also noted was that a cone beam CT scan had been performed and showed a missing tooth number 24 with advanced bone loss and a knife edged ridge and widening of periodontal ligament space around abutment tooth. See December 2018 Progress Note received January 2019. At the January 2021 Board hearing, noted above, the Veteran testified that he chipped his front tooth getting out of a Humvee while he was in Iraq, for which he underwent a root canal. The Veteran testified that when he returned to the U.S., his tooth was extracted and an implant was placed. However, the implant had to be removed due to infection. He testified that 2 other attempts at implants were made, without success. He further testified that during the course of his treatment, his mandible and the back of his jaw were fractured and a bone graft was performed. The Veteran testified that he currently had a bridge over the missing tooth and the 2 neighboring teeth. See January 2021 Transcript of Hearing, pages 7-11. Applying the legal criteria set forth above to the facts in this case, the Board finds that service connection for a dental disability for VA compensation purposes is not warranted. (Continued on the next page)   In this regard, although the Veteran had an injury and documented root canal to tooth number 24 in service, the post-service clinical evidence shows that he does not currently exhibit a compensable dental disability of tooth number 24 for which service connection may be granted. He currently has a complete and functional restoration of tooth number 24, in the form of a dental bridge. Although the Board acknowledges the Veteran’s contention that he continues to experience dental discomfort, as well as gingivitis and irritation, the applicable legal criteria does not provide compensation based on such symptoms. Additionally, although a dental bridge is in place for missing tooth number 24, which he contends is the result of the in-service dental trauma, the applicable legal criteria provide that replaceable missing teeth is not a disabling condition for VA compensation purposes and may be considered service connected solely for the purpose of establishing eligibility for VA outpatient dental treatment. 38 C.F.R. § 3.381(b). Moreover, under 38 C.F.R. § 4.150, Diagnostic Code 9913, loss of teeth can be service connected for compensation purposes only if the missing teeth are due to loss of substance of the body of the maxilla or mandible. However, the record indicates that the Veteran’s missing tooth was not due to loss of substance of the body of the maxilla or mandible. Furthermore, there has been no finding of any other compensable dental condition identified. 38 C.F.R. § 4.150. Under these circumstances, the Board can find no basis upon which to award service connection for VA compensation purposes for a dental disability. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Ruddy, 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.