Citation Nr: 21027873 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 10-44 378A DATE: May 7, 2021 ORDER Entitlement to service connection for a dental condition is denied. Entitlement to a 10 percent evaluation based upon multiple, noncompensable service--connected disabilities is denied. FINDINGS OF FACT 1. Although the Veteran broke a tooth during service, he does not currently have a compensable dental condition for VA purposes. 2. The Veteran now has a compensable rating for the entire appeal period. CONCLUSIONS OF LAW. 1. The criteria for service connection for a dental condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a 10 percent evaluation based upon multiple, noncompensable service--connected disabilities have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 3.324. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1982 to July 1986. He also had a period of service from August 1986 to February 1987 that was found to be under dishonorable conditions for VA purposes. These matters come before the Board of Veterans' Appeals (Board) on appeal of an August 2009 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a Veterans Law Judge at a videoconference hearing in June 2016, and a transcript of this hearing is in the claims file. This hearing was before a now-retired Judge. Although given the opportunity to request another hearing by VA written correspondence in February 2021, the Veteran declined to do so by not responding to the letter within the 30-day response period. During the pendency of this appeal, the Veteran's claim for service connection for a right hand/wrist disability was granted by the Agency of Original Jurisdiction (AOJ) in October 2020. Seeing as this claim was granted in full and, seeing as the Veteran has not appealed this decision at this time, this claim is no longer before the Board and therefore will not be addressed. These matters were previously before the Board in August 2016 and August 2017, and both times these matters were remanded for further development. These matters have since returned to the Board for further appellate review. 1. Entitlement to service connection for a dental condition Service connection will be granted if the evidence in the record demonstrates that a current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) an in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 3110. Thus, the threshold question that must be addressed here is whether the Veteran had the disability for which service connection is sought at any time during the appeal period. In the absence of proof of a disability during that period, there is no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997). Replaceable missing and broken (fractured) teeth are not compensable disabilities and may be considered service-connected solely for the purposes of determining entitlement to dental examination(s) or outpatient dental treatment. See Simingtonv. West, 11 Vet. App. 41 (1998). Under 38 C.F.R. § 3.381, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not compensable disabilities and are to be considered service connected solely for the purpose of establishing eligibility for outpatient dental treatment. 38 § C.F.R. 17.161. Veterans having a service-connected noncompensable dental condition or disability adjudicated as resulting from combat wounds or service trauma may be authorized any treatment indicated as reasonably necessary for the correction of such service-connected noncompensable condition or disability. 38 C.F.R. § 17.161(c). Trauma, as defined for purposes of dental treatment eligibility, connotes damage caused by the application of sudden, external force, brought to bear outside a clinical setting sustained as sudden trauma; for these purposes, the term "service trauma" does not include the intended effects of therapy or restorative dental care and treatment provided during a Veteran's military service. 38 C.F.R. § 3.306(b)(1); Nielson v. Shinseki, 607 F.3d 802. 808-09 (2010). The Veteran's service treatment records (STRs) note issues with tooth 9 during service. In his April 1986 physical, the examiner noted the Veteran had a fixed partial denture, and a November 1985 dental note indicates there was insufficient time to replace his tooth 9 prior to separation. The January 1987 separation examination notes the Veteran had a restorable tooth for tooth 9. The Veteran also stated he lost his front tooth while jumping into a pool during his active service. The Veteran was afforded a VA dental examination in September 2020. The examiner noted the Veteran broke his tooth while in the Navy and it had been replaced with an acrylic partial. The Veteran reported no change since his tooth was replaced and stated he did not have any pain or other issues related to his tooth. The examiner did not diagnose the Veteran with any current dental condition, instead stating the Veteran did not have a current dental condition. The preponderance of the evidence indicates the Veteran lost his number 9 tooth during his active duty service due to trauma, namely breaking his tooth when he jumped into a pool. However, the record does not contain any competent, probative evidence that the Veteran's tooth loss was due to loss of substance of body of maxilla or mandible without loss of continuity. Because his missing tooth was replaced, this demonstrates it was replaceable. As stated above, a replaceable missing or fractured tooth is not a compensable disability and is to be considered service-connected solely for the purposes of establishing eligibility for outpatient dental treatment. Seeing as the evidence does not establish that the Veteran had a diagnosed dental disability For VA compensation purposes during the period on appeal, the Board finds that service connection is not warranted. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the current disability requirement is satisfied when a claimant "has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim"). However, because the preponderance of the evidence indicates the Veteran has a service-connected noncompensable dental condition resulting from service trauma, he may be authorized any treatment indicated as reasonably necessary for the correction of such service-connected noncompensable condition or disability under Class II(a). 38 C.F.R. § 17.161(c). Service connection is therefore warranted solely for the purpose of establishing eligibility for outpatient dental treatment. 2. Entitlement to a 10 percent evaluation based upon multiple, noncompensable service--connected disabilities is denied. The Veteran appealed the denial of a 10 percent rating based on having two or more noncompensable service-connected disabilities that are permanent and clearly interfere with normal employment. 38 C.F.R. § 3.324. Such a rating may not be combined with any other rating. Id. During the pendency of the appeal of this issue, the Veteran was granted service connection for his right hand/wrist with a compensable rating of 10 percent, effective June 25, 2009, in an October 2020 rating decision. Although the Veteran has two noncompensable service-connected disabilities of a fractured right fourth metatarsal and right leg scar with residuals, the Veteran would have only been eligible for the provisions of 38 C.F.R. § 3.324 as of June 25, 2009 because this was the earliest time the Veteran had two noncompensable service-connected disabilities. However, because the Veteran's right hand/wrist disability has been rated as 10 percent disabling effective June 25, 2009, he now has a compensable rating for the entire appeal period. A separate 10 percent rating may not be awarded under § 3.324. Therefore, the claim for a 10 percent rating for multiple noncompensable service-connected disabilities is denied. M. Mills ActingVeterans Law Judge Board of Veterans' Appeals Attorney for the Board Gabrielle Ongies, 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.