Citation Nr: 21026820 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 14-27 859A DATE: May 4, 2021 ORDER Entitlement to service connection for a dental condition, for compensation purposes only, is denied. REMANDED Entitlement to service connection for a lumbar spine disorder is remanded. Entitlement to service connection for a gastrointestinal disorder, claimed as tropical sprue with dysentery, steatorrhea, and malnutrition, is remanded. Entitlement to an effective date earlier than March 15, 2010 for the award of a total rating based on individual unemployability due to service connected disability (TDIU) is remanded. FINDING OF FACT Replaceable missing teeth is not a disability for which service connection for compensation purposes may be granted and there is no other nonservice-connected dental disability that has been shown to be related to any damage to the jaw during service. CONCLUSION OF LAW The claim for service connection for a dental disability, for compensation purposes, is without legal merit. 38 U.S.C. §§ 1131, 1712, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.381, 4.150. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from September 1966 to August 1968, to include service in the Republic of Vietnam. The Veteran's awards and decorations for his service include a Bronze Star, among others. These matters come to the Board of Veterans' Appeals (Board) on appeal from June 2004, June 2011 and December 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of this appeal is currently with the RO in Phoenix, Arizona. This case was most recently before the Board in July 2020, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. The case has now been returned to the Board for appellate action. In addition, in an October 2020 rating decision, the AOJ granted service connection for coronary artery disease, photosensitivity and scars, and assigned initial ratings. Additionally, in a January 2011 rating decision, the AOJ granted service connection for right knee instability, right knee scars, left thumb scars, residuals of bullet wound in the left calf, and dengue fever; initial ratings were assigned for each disability. To date, the Veteran has not submitted a notice of disagreement with these decisions. As these decisions represent a full grant of the benefits sought with respect to his claims for service connection, such issues are no longer before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). The Board notes that in a February 2021 rating decision, the AOJ granted entitlement to an earlier effective date of March 15, 2010, for the grant of entitlement to a TDIU. As the award does not represent a full grant of the benefit sought on appeal, the claim remains in appeal status. See AB v. Brown, 6 Vet. App. 35 (1993). Additionally, the Board notes that the issue of entitlement to service connection for a dental disorder for treatment purposes, to include as due to exposure to Agent Orange, was remanded for an issuance of a statement of the case under 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). In January 2021, the AOJ issued a statement of the case, and the Veteran submitted a timely substantive appeal (VA Form 9). Specifically, the Veteran's representative asserted he was seeking entitlement to service connection for a dental disorder for compensation purposes, and not appealing the issue of entitlement to service connection for a dental disorder for treatment purposes because the Veteran was entitled to treatment for dental care from VA because he was rated as 100 percent disabled. See VA Form 9, January 31, 2021. The Board notes that the issue of entitlement to service connection for a dental disorder for compensation purposes was not previously before the Board in July 2020. However, the AOJ issued a statement of the case addressing the issue, and the Veteran filed a substantive appeal for entitlement to service connection for a dental disorder for compensation purposes. Therefore, the Board finds that the AOJ has consistently treated the matter of entitlement to service connection for a dental disorder for compensation purposes as if it was part of the timely filed substantive appeal for TDIU. Percy v. Shinseki, 23 Vet. App. 37 (2009). Accordingly, the Board takes jurisdiction of the issue of entitlement to service connection for a dental disorder for compensation purposes only. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show: (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, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). In the context of dental claims, the United States Court of Appeals for Veterans Claims (Court) has specifically held that a claim for service connection for a dental disorder is also a claim for VA outpatient dental treatment under 38 C.F.R. § 3.381. Mays v. Brown, 5 Vet. App. 302 (1993). Thus, adjudication of the Veteran's claim for service connection must also include consideration of service connection for the purpose of establishing eligibility for outpatient dental treatment as set forth in 38 C.F.R. § 17.161. See also Douglas v. Derwinski, 2 Vet. App. 435, 440 (1992) (en banc) (holding that the Board is required to consider a veteran's claim under all applicable provisions of law and regulation whether or not the claimant specifically raises the applicable provision); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Service connection for compensation purposes can be established only for the specific types of dental and oral conditions listed under 38 C.F.R. § 4.150, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla. Compensation is available for loss of teeth only if due to loss of substance of the body of the maxilla or mandible. See Simmington v. West, 11 Vet. App. 41 (1998). For loss of teeth, bone loss through trauma or disease such as due to osteomyelitis must be shown for purposes of compensability. The loss of the alveolar process as a result of periodontal disease is not considered disabling. See Note to Diagnostic Code 9913, 38 C.F.R. § 4.150. Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not compensable disabilities, but may be considered service connected solely for the purpose of establishing eligibility for outpatient dental treatment. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Dental Condition for Compensation Purposes Only The Veteran has asserted that he has a dental condition as a result of his active service and seeks service connection for compensation purposes. Specifically, the Veteran asserts that his exposure to herbicide agents in the Republic of Vietnam as well as the the inability to maintain good oral hygiene while in the Republic of Vietnam and in combat situations, resulted in dental problems. See e.g. Affidavit, July 12, 2006. Additionally, the Veteran asserts that his teeth fell out due to malaria, a compromised immune system as due to neutropenia, and that he lost his teeth due to his service in the Republic of Vietnam. See Decision Review Officer Hearing testimony transcript, May 21, 2014. Considering the pertinent evidence in light of the governing legal authority, the Board finds that service connection for a dental condition resulting in missing teeth is not warranted. As discussed below, the Veteran is precluded from entitlement to service connection for compensation purposes for such a condition. See 38 C.F.R. § 3.381(b). 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. VAOPGCPREC 5-97 (1997); see also Nielson v. Shinseki, 607 F.3d. 802 (Fed. Cir. 2010). The Veteran's service treatment records reflect that the Veteran's tooth numbered 30 was missing, and that he had "bad teeth" in February 1967. A February 1969 VA dental examination notes that a left first mandibular molar was extracted in late 1967 and that the Veteran presents with favorable prognosis for fixed bridge. The Veteran's post-service dental records show that the Veteran has some tooth or dental pain, but has consistently been shown to have normal teeth and gums. See e.g. VA treatment record, December 1, 2008 (indicating the Veteran complained of dental pain); see VA treatment record, October 2, 2013 (indicating the Veteran denied jaw pain); see e.g. VA treatment record, December 5, 2007 (indicating the Veteran had natural teeth, intact); and see private treatment record, January 7, 2015 (indicating the Veteran had normal teeth). The question the Board must consider is whether the Veteran has a dental disability of a nature that fits the regulatory criteria for consideration of compensation. Although the record shows that the Veteran had "bad teeth" and one missing tooth during service, there is no indication he has been diagnosed with any of the dental or oral conditions listed in 38 C.F.R. § 4.150. The Veteran generally claims that his current dental disability is related to in-service dental care; however, the term "service trauma" does not include the intended effects of therapy or restorative dental care and treatment provided during a veteran's active service. See 38 C.F.R. § 3.306(b)(1); VAOGCPREC 5-97. Moreover, the United States Court of Appeals for the Federal Circuit has confirmed that service trauma does not "include the intended results of proper medical treatment provided by the military." Nielson v. Shinseki, 607 F.3d 802, 805 (Fed. Cir. 2010). Even considering the Veteran's contentions regarding his exposure to herbicide agents and combat in the Republic of Vietnam, and inability to maintain oral hygiene, such cannot be considered "trauma" for purposes of his claim. As the Veteran is not shown to have sustained compensable "dental trauma" in service, or to have one of the dental disorders listed under 38 C.F.R. § 4.150, a compensable dental condition is not shown and service connection of dental trauma for compensation purposes must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for compensation for a dental condition, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. REASONS FOR REMAND 1. Service Connection Lumbar Spine Disorder and Gastrointestinal Disorder The Veteran seeks entitlement to service connection for a lumbar spine disorder and a gastrointestinal disorder, to include as due to combat during his service in the Republic of Vietnam. As noted above, the claims were most recently before the Board in July 2020, when the claims were remanded to the AOJ for further development. Specifically, the July 2020 Board remand directed the AOJ to afford the Veteran VA examinations to determine the nature and etiology of his lumbar spine and gastrointestinal disorders. It its July 2020 remand directives, the Board directed the AOJ to obtain opinions to identify and diagnose all currently present lumbar spine disorders, determine the etiology of such diagnosed lumbar spine disorders and provide supporting rationale. With regard to the claimed gastrointestinal disorder, the Board directed the AOJ to determine the nature and etiology of tropical sprue to include a confirmation of a diagnosis of tropical sprue or any gastrointestinal disorder (other than irritable bowel syndrome), to specifically address the August 2006 private assessment by Dr. I.S. and to provide supporting rationale. The requested VA examination was afforded with respect to the Veteran's claimed lumbar spine disorder in December 2020. At that time, the examiner opined that the Veteran's lumbar spine disorder was less likely than not related to active service. In that regard, the examiner noted the Veteran did not have documented back injury in time of his active service and had a fall injury in 1996 after active service. The VA examiner also noted that the Veteran had a back injury during active service with continuing pain and symptomatology and that service treatment records showed a lumbar strain in May 1968 during active service. However, this opinion appears to be based on an inaccurate factual premise as the service treatment records reflect the Veteran's reports of back pain in May 1968. Reonal v. Brown, 5 Vet. App. 460, 461 (1993) (an opinion based on an inaccurate factual premise has no probative value). Therefore, the Board finds the December 2020 opinion inadequate to decide the claim and an addendum opinion is required. Moreover, with regard to the Veteran's claimed gastrointestinal disorder, the Veteran was not afforded a VA examination as directed by the July 2020 Board. The Veteran was afforded a VA infectious disease examination but a gastrointestinal examination was not conducted. On remand, such an examination should be conducted. Given these deficiencies, the Board is unable to find that substantial compliance with the prior remand has been achieved. See D'Aries, 22 Vet. App. at 105; see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As such, remand is again to obtain VA opinions that complies with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. at 268, 271 (1998). 2. Earlier Effective Date for the Award of a TDIU Regarding the issue of entitlement to an effective date earlier than March 15, 2010 for the award of entitlement to a TDIU, the Board notes that the issue is inextricably intertwined with the claims remanded herein. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). Hence, a determination on the claim for entitlement to an effective date earlier than March 15, 2010 for the award of entitlement to a TDIU should be deferred pending final dispositions of the claims of entitlement to service connection for a low back disorder and a gastrointestinal disorder. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, obtain an addendum VA opinion from the VA examiner who conducted and provided the December 2020 VA examination and opinion regarding the Veteran's lumbar spine disorder. The need for further in-person examination is left to the discretion of the examiner. Following a review of the record, the examiner is again asked to address the following: Is it at least as likely as not (50 percent or more probability) that the lumbar spine disorder is related to the Veteran's military service, to include combat exposure, and low back complaints therein? The examiner should specifically address the May 1968 complaints of lumbar spine pain and the finding of an acute lumbosacral strain. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. A CLEAR RATIONALE FOR ALL OPINIONS IS REQUIRED. 3. Following the receipt of outstanding records, schedule the Veteran for a VA examination for his claimed gastrointestinal disorder. Further in-person examination is left to the discretion of the examiner. Following a review of the record, the examiner is again asked to address the following: (A) Identify all diagnosed gastrointestinal disorders that the Veteran has suffered from at any time since June 2004. (B) For each such diagnosed disorder, is it at least as likely as not (50 percent or more probability) that the disorder is related to the Veteran's military service, to include combat exposure? The examiner must specifically address the August 2006 private assessment wherein Dr. I.S. states the Veteran had celiac sprue, as opposed to tropical sprue. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. A CLEAR RATIONALE FOR ALL OPINIONS IS REQUIRED. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.