Citation Nr: 21027719 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 12-23 048 DATE: May 6, 2021 ORDER Entitlement to service connection for the loss of teeth 7 through 11 of the upper front teeth, due to dental trauma is granted. REMANDED Entitlement to service connection for loss of the upper teeth, not including teeth 7 through 11, due to dental trauma is remanded. FINDING OF FACT The evidence is at least in relative equipoise as to whether the Veteran's loss of teeth 7 through 11 of his upper front teeth is the result of in-service trauma. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for the loss of teeth 7 through 11 of the upper front teeth is granted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.381. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1955 to June 1958 and September 1991 to May 1998, and in the United States Navy from October 1958 to October 1962. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony with regard to the issue on appeal during a March 2016 videoconference hearing. A transcript of this proceeding has been associated with the record. In February 2020, he was informed that the Veterans Law Judge (VLJ) who presided over the hearing was no longer with the Board, and offered a hearing before a different VLJ. He did not respond to this letter within 30 days of receipt; thus, the Board presumes an additional hearing has not been requested. This appeal was remanded by the Board in September 2014, May 2016, May 2018, and May 2020 for further development. The case has since returned to the Board for further adjudication. Service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical "nexus" requirement). Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); see 38 C.F.R. §§ 3.303(a). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Gilbert, 1 Vet. App. at 53. The Board notes that in the VA benefits system, dental disabilities are treated differently from medical disabilities. VA regulations provide that treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease will be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment, not for compensation purposes. 38 C.F.R. § 3.381(a). The governing regulation pertaining to service connection for dental conditions such as the one at issue here, provides that treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not compensable disabilities, but may nevertheless be service connected solely for the purpose of establishing eligibility for outpatient dental treatment as provided for in § 17.161 of this chapter. These conditions and other dental conditions or disabilities that are noncompensably rated under § 4.150 of this chapter may be service connected for purposes of Class II or Class II (a) dental treatment under § 17.161 of this chapter. 38 C.F.R. § 3.381(b). The significance of finding that a dental condition is due to service trauma is that a veteran will be eligible for VA dental treatment for the condition without the usual restrictions of timely application and one-time treatment. 38 C.F.R. § 17.161(c). VA's General Counsel has held that merely to have had dental extractions during service is not tantamount to dental "trauma", because trauma of teeth, even extractions, in and of itself, does not constitute dental trauma. VAOPGCPREC 5- 97 (January 22, 1997). For the purposes of determining whether a veteran has Class II(a) eligibility for dental care under 38 C.F.R. § 17.161(c), the term "service trauma" does not include the intended effects of treatment provided during the veteran's military service. Id. During the March 2016 Board hearing, the Veteran asserted that he underwent an injury during service that took place between 1956 and 1957. The injury required the removal of five of his upper front teeth and insertion of a partial denture. The Veteran asserted that the partial denture resulted in wear and tear on the enamel of the Veteran's upper teeth, which eventually caused him to lose his upper teeth. The Veteran's service treatment records prior to 1958 are unavailable, however, an October 1958 dental record notes that the Veteran has five missing upper front teeth which were replaced by a denture. Specifically, the record shows the loss of the upper teeth, from teeth 7 through 11. In instances where a Veteran's service department records are unavailable, the Board is under a heightened obligation to explain its findings and to carefully consider whether the evidence is in equipoise, and if so, to resolve the matter in the claimant's favor. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). In a December 2020 VA examination, the examiner noted that the Veteran was missing his front four teeth when he went into the Navy, following an injury in the Army where he was hit by a gun. The examiner also noted that the Veteran had an upper denture, and was missing all of his teeth. The examiner acknowledged that the incident during service may have caused the Veteran to lose four of his teeth and have a partial inserted, but this did not lead to complete tooth loss. Based upon the Veteran's credible lay assertions and given the December 2020 examiner's opinion that the injury in service may have caused the Veteran to lose four of his teeth, the Board finds that the record demonstrates the type of dental trauma contemplated by 38 C.F.R. § 17.161(c), a dental injury in the form of blunt force trauma to the teeth precipitating the extraction and treatment of those teeth in service. In view of the competent lay evidence of record and the Veteran's October 1958 dental record, and considering the liberal application of the benefit of the doubt, the Board finds that the evidence is at least in equipoise as to whether the Veteran had the extraction of upper teeth 7 through 11 during active duty service as a result of dental trauma for Class II(a) treatment eligibility. 38 C.F.R. § 17.161(c). Resolving the benefit of the doubt in favor of the Veteran, the Board finds that service connection for the loss of the upper teeth, for teeth 7 through 11, for the purpose of receiving Class II(a) VA outpatient dental treatment is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Although the Board sincerely regrets the additional delay this will cause, an additional remand is necessary prior to the adjudication of this appeal. As noted above, the Veteran underwent a dental examination in December 2020. In the December 2020 opinion, the examiner concluded that it was less likely than not that the Veteran's dental disorder, or loss of upper teeth, was due to service. The examiner explained that while the Veteran may have lost four of his upper teeth due to an injury in service, the partial denture did not result in additional loss of the upper teeth. The examiner indicated that dental hygiene, decay, and periodontal disease cause tooth loss. The Board finds that this opinion is inadequate because it did not address whether the Veteran's partial denture could have caused decay that later lead to his tooth loss. Notably, during the March 2016 Board hearing, the Veteran reported that his upper teeth underwent wear and tear on the enamel due to the partial denture and that he had to have his teeth extracted by a private dentist following service, in 1964. Thus, a remand is necessary to obtain an addendum opinion which addresses the nature and etiology of the loss of the Veteran's remaining upper teeth, not including teeth 7 through 11. During the March 2016 Board hearing, the Veteran also reported receiving treatment from private dentists in Louisiana and Oklahoma. While the Veteran reported that he could not recall the name of the dentist in Louisiana and that the dentist's office likely no longer existed, there do not appear to be any efforts made by the AOJ to obtain his private treatment records from Oklahoma. Accordingly, on remand, the AOJ should attempt to obtain and associate with the claims file any missing private treatment records. The matters are REMANDED for the following action: 1. Obtain any private treatment records pertaining to the Veteran's dental disorder. Specifically, attempts should be made to obtain any private dental records for treatment received in Oklahoma. 2. After the above development is completed, obtain an addendum opinion from an appropriate VA clinician which addresses the nature and etiology of the Veteran's claimed dental disorder. The claims file and a copy of this remand must be made available for review. The examiner is asked to address whether it is at least as likely as not that the Veteran's loss of his upper teeth, not including teeth 7 thorough 11, was caused by or otherwise related to service. Specifically, the examiner must address whether the Veteran's partial denture, which was implanted during service, could have caused or contributed to any decay or disease that later resulted in the loss of the Veteran's upper teeth. In rendering this opinion, the examiner should address the Veteran's testimony that his partial denture caused the enamel of his upper teeth to wear away. (continued on the next page) A complete rational must be provided. If any opinion cannot be provided without resorting to mere speculation, provide a complete explanation stating why, to include explaining whether the inability to provide a more definitive opinion is the result of a need for additional information or that the limits of current medical knowledge have been exhausted. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Saikh, 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.