Citation Nr: 21030046 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 11-24 836 DATE: May 17, 2021 ORDER Entitlement to VA outpatient dental treatment is denied. FINDING OF FACT The Veteran is not homeless, a prisoner of war, in receipt of a 100 percent rating or TDIU, or participating in vocational rehabilitation; the record also does not show pleadings or evidence that any dental condition is secondary to in-service trauma, is secondarily aggravating any service-connected condition or is complicating any medical condition the VA is treating; the condition claimed is not a compensable service-connected condition; the claim at hand was not filed within 180 days of any period of active duty. CONCLUSION OF LAW The criteria for entitlement VA outpatient dental treatment have not been met. 38 U.S.C. §§ 1712; 38 C.F.R. §§ 3.381, 4.150, 17.161. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1990 to June 1991. This matter comes before the Board of Veterans' Appeals (Board) from a July 2010 Rating Decision. In the September 2015 Board decision, service connection for a dental disability was denied, and eligibility for dental treatment was remanded for initial adjudication. In September 2019, the Board remanded the dental treatment issue for initial adjudication by the VHA or referral to VBA. A supplemental statement of the case continued the denial and cited a VHA decision. Accordingly, the Board finds substantial compliance with the remand requests. The Veteran testified before the undersigned Veterans Law Judge in April 2019. A transcript of the hearing has been associated with the record. 1. Entitlement to service connection for a dental disability for the purpose of obtaining VA outpatient dental treatment is denied. The Veteran seeks dental treatment. He had an abscess and a tooth removed during the one time Class II treatment that was performed in the early 1990s, and contends that the removal of the tooth has caused increased wear and caries to neighboring teeth which now need treatment. The Veteran had a fistula on the lingual between tooth 2 and 3, with a 6 to 7 millimeter pocket distal to tooth 3. The Veteran is currently missing tooth 3, and the evidence suggests that the loss is related to the abscess that began during service. For the purpose of entitlement to VA outpatient dental treatment, various categories of eligibility exist, which consist of veterans having a compensable service-connected dental condition (Class I eligibility); one-time treatment for veterans having a noncompensable service-connected dental condition (Class II eligibility); those having a noncompensable service-connected dental condition adjudicated as resulting from a combat wound or other service trauma (Class II(a) eligibility); certain homeless and other enrolled veterans eligible for a one-time course of dental care (Class II(b) eligibility); those who were detained as a POW (Class II(c) eligibility); those who made prior applications for, and received, dental treatment from VA for noncompensable dental conditions but were denied replacement of missing teeth that were lost during any period of service prior to his or her last period of service (Class IIR (Retroactive) eligibility); those having a dental condition professionally determined to be aggravating disability from an associated service-connected condition or disability (Class III eligibility); those whose service-connected disabilities are rated at 100 percent by schedular rating or who are entitled to the 100 percent rating by reason of individual unemployability (Class IV eligibility); those who participate in a rehabilitation program under 38 U.S.C. Chapter 31 (Class V eligibility) and those who are scheduled for admission or who are otherwise receiving care and services under Chapter 17 of 38 U.S.C., where dental care is medically necessary (Class VI eligibility). 38 U.S.C. § 1712; 38 C.F.R. § 17.161. The claim at hand is not a timely claim for Class II treatment. Class II treatment must be sought within 180 days of separation or corrected service separation form. 38 C.F.R. § 17.161(b)(1). Class II treatment is what the Veteran has already received, and permits any treatment indicated as reasonably necessary for the "one time correction of the service-connected noncompensable condition." The claim before the Board, filed many years later, cannot be viewed as a timely Class II treatment. Because Class II treatment is not timely implicated, and Class I treatment has been foreclosed by the September 2015 Board decision, the question of whether any subsequently developed dental condition bears any relation to service is academic. Potential eligibility under a class of 38 C.F.R. § 17.161 is required for the issue of entitlement to service connection for a noncompensable dental disorder to become relevant. The Veteran is not otherwise eligible for dental treatment under Classes IV, V, or VI. Under Class I, he does not have a service-connected dental disability, as determined in the September 2015 Board decision. Under Class II(a), he does not have a dental condition from combat wounds or service trauma. Under Classes II(b) and II(c), he is not homeless and was not a prisoner of war. Under Class II(R), he was not denied replacement of missing teeth with application made within one year of April 5, 1983. Under Class IV, he does not have service-connected disabilities rated 100 percent. Under Class V, he has not participated in VA's Vocational Rehabilitation program. Under Class VI, he was not scheduled for admission or otherwise receiving care and services under 38 U.S.C. Chapter 17. 38 C.F.R. § 17.161. Addressing the contentions advanced on appeal, the theory of secondary service connection warrants some brief discussion. Questions of fact regarding causation notwithstanding, although service connection for removed teeth is possible where additional teeth were removed as part of treatment for trauma-related dental condition, the statutory and regulatory criteria do not allow for service-connection many years later for a non-trauma condition that had been stabilized and treated by tooth removal during Class II treatment. Simington v. West, 11 Vet. App. 41 (1998). Secondary service connection is permitted only for trauma-related conditions. Compensable and trauma related dental conditions receive treatment for life, while Class II conditions receive only one-time treatment. 38 C.F.R. § 17.161(a)-(c). For Class II conditions, the Board notes that it may not be uncommon for the treatment provided for those conditions to need to be redone, over time, or for teeth with such conditions to present with dental complications in the future. However, the law does not permit more than the one-time Class II treatment, even if the tooth requires additional treatment years later. Permitting lifetime treatment for a secondary condition when the primary condition would be allowed only one-time is inconsistent with the statutory and regulatory criteria. The Board also considered whether treatment was warranted under the provisions of 38 U.S.C. § 1712(b), which permits a "redo" when the Class II one-time treatment is unacceptable within the limitations of good professional standards. However, the evidence of record, essentially the Veteran's lay opinion that the removal of tooth number 3 was not warranted, does not meet the minimum showing to warrant further consideration of that theory. The Veteran has not submitted any competent evidence to support that theory of entitlement. Accordingly, the Board finds that the preponderance of the evidence is against the claim for dental treatment. Therefore, the claim must be denied. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. C. KING 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.