Citation Nr: 21032406 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 17-60 081 DATE: May 27, 2021 ORDER Service connection for purpose of compensation for a dental condition, claimed as periodontal disease, is denied. The issue of a disability rating more than 50 percent for service-connected sleep apnea is dismissed. REMANDED The issue of service connection for a dental condition for the purpose of treatment is remanded. FINDINGS OF FACT 1. The Veteran does not have a compensable dental disability. 2. On September 16, 2020, prior to the promulgation of a decision in the appeal, the Veteran withdrew his claim for an increased rating for sleep apnea. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for compensation purposes for periodontal disease have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.150. 2. The criteria for dismissal of entitlement to an increased for sleep apnea have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1992 to March 2015. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions in December 2016 and November 2017 from a Department of Veterans Affairs (VA) regional office (RO). The Veteran appeared at a hearing before the undersigned Veterans' Law Judge in September 2020. A transcript of the hearing has been associated with the claims file. The Veteran's claim for service connection for a dental condition is also a claim for VA outpatient dental treatment. Mays v. Brown, 5 Vet. App. 302, 306 (1993). The Veteran's September 2020 hearing testimony indicates that he intended for his appeal of the denial of service connection for compensation purposes for a dental condition also included the claim for treatment purposes. As the claim for compensation was properly appeal to the Board, the claim for treatment is also under the Board's jurisdiction. Grimes v. McDonough, No. 18-1017, 2021 U.S. App. Vet. Claims LEXIS 742, at *22-23 (Apr. 28, 2021). 1. Service Connection for Compensation Purposes for Periodontal Disease Generally, service connection may be granted for disability or injury incurred in, or aggravated by, active military service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection for a claimed disorder, there must be (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Here the Veteran claimed service connection for periodontal disease. The Veteran's service treatment records confirm the Veteran had chronic periodontal disease while in service. However, periodontal disease is not a compensable dental condition. 38 C.F.R. § 3.381 (b). Additionally, an April 2015 examination noted the Veteran was missing teeth number 3, 14, 19, 30, and 32. An October 2, 1992 examination showed number 32 was already missing and there no indication it was removed in service. Although the remaining missing teeth have not been replaced, the record does not indicate they cannot be replaced, nor has the Veteran made such a contention. If they are replaceable, they are not compensable dental disabilities. Id. Even if the Veteran's missing teeth were not replaceable, service connection still would not be warranted. Missing teeth are not considered a disability by VA unless the tooth loss is due to loss of substance of the body of the maxilla or mandible caused by trauma or disease such as osteomyelitis. 38 C.F.R. § 4.150, Diagnostic Code 9913. Loss of the alveolar process because of periodontal disease is not considered disabling. Id. While "bone loss" is noted in service treatment records, and April 2015 dental consultation indicates the bone loss is only to alveolar process. Thus, the missing teeth cannot be considered a compensable disability, whether or not they are replaceable, as the type of bone loss necessary for compensation for missing teeth is not present. As such, the Veteran does not have a compensable dental disability. Service-connection for the purposes of compensation cannot be granted where there is no compensable disability. Therefore, the claim for service connection for the purposes of compensation is denied. 2. Increase Rating for Sleep Apnea. In his September 2020 hearing, the Veteran clearly and unambiguously stated he was withdrawing the above-listed claims. The Veteran, accompanied by representation, was informed that if he withdrew his appeal, the Board would not decide the issues, and, should he choose to pursue the claims again, he would need to file new claims. The Veteran verbally indicated he understood and wished to proceed with the withdrawal. Thus, the claims were not addressed at the hearing. The Board finds that the Veteran knowingly and willingly withdrew this issue at the September 2020 hearing. See Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011) (an oral withdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant). The Veteran's claim for an increased rating for sleep apnea is dismissed. REASONS FOR REMAND 1. Service Connection for a Dental Condition for Treatment Purposes is Remanded. The matter is REMANDED for the following action: 1. BACKGROUND FOR THE ADJUDICATOR A claim for VA outpatient dental treatment may be adjudicated after the Veteran's Health Administration (VHA) determines a Veteran meets basic eligibility requirements. 38 C.F.R. § 3.381. The December 2016 rating decision proports that the claim for treatment was forwarded to the Dental Clinic Eligibility Section. However, there is no indication in the record that the claim was forwarded. This includes a lack of any notification to the Veteran about the status of his claim or any determination made by VHA. As the Veteran's claim does not appear to have been evaluated by the VHA, a remand is necessary to forward the Veteran's claim for dental treatment to VHA. 2. Forward the Veteran's claim for service connection for the purposes of treatment of a dental condition, to include for the loss of teeth due to chronic periodontal disease, to the appropriate VHA office to determine eligibility. In the file, document the forwarding of the claim to VHA. Notify the Veteran of any eligibility determination made by VHA. 3. Thereafter, adjudicate the Veteran's claim for service connection for the purposes of treatment of a dental condition, to include loss of teeth due to chronic periodontal disease. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Reed, 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.