Citation Nr: 21042711 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-40 167 DATE: July 13, 2021 ORDER Entitlement to service connection for a dental disability for disability compensation purposes is denied. REMANDED Entitlement to service connection for a dental disability for treatment purposes is remanded. FINDING OF FACT The Veteran does not have a dental disability for which service-connected compensation is payable. CONCLUSION OF LAW Entitlement to service connection for a dental disability is not warranted. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.381, 4.150, 17.161. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1976 to January 1984. The Board notes that the Veteran had an additional period of service from January 1985 to May 1986 from which he received an other-than-honorable discharge. See 38 C.F.R. § 3.12. However, as the Veteran has alleged that his dental disability is due only to his first period of service, the Board need not address whether the Veteran's character of discharge from his second period of service is a bar to VA disability benefits. See id. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in October 2016 by a Department of Veterans Affairs (VA) Regional Office (RO). In pertinent part, in October 2016 the RO denied entitlement to service connection for a dental disability for treatment purposes, and the Veteran filed a notice of disagreement in November 2015. In the June 2016 statement of the case, the RO stated that service connection for a dental disability for compensation purposes was denied, explaining that the Veteran's initial claim was for compensation and not treatment. The Veteran perfected an appeal of that denial. During his April 2019 hearing, the presiding Veterans Law Judge (VLJ) characterized the issue as entitlement to service connection for a dental disability for treatment purposes only. In light of the inconsistent characterization of the dental claim on appeal, the Board will address the question of entitlement to service connection for a dental disability for both compensation and treatment purposes. The Board remanded the issues on appeal for additional development in July 2019. VA treatment records have since been associated with the file, and the requested examination and opinion was obtained in January 2020. As such, the directives have been substantially complied with and the matter is again properly before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). In July 2019 the Board also remanded the issues of entitlement to service connection for a low back disability and a cervical spine disability. While on remand, service connection for both disabilities was granted in a rating decision issued in January 2021. As this constitutes a full grant of the benefits sought as to those issues, they are no longer on appeal. Ab v. Brown, 6 Vet. App. 35 (1993). The Veteran testified at a hearing before a VLJ in April 2019. A transcript of the hearing is of record. In May 2021 correspondence the Veteran was informed that the VLJ who presided over his hearing was no longer employed at the Board, and was offered the opportunity to request a new hearing. In June 2021, the Veteran stated that he did not wish to have another hearing. Since the most recent adjudication of the issue on appeal by the agency of original jurisdiction (AOJ), the Board notes that additional VA treatment records and examination reports have been associated with the file. However, these records do not have any bearing on the issue being decided herein as they do not contain any information concerning the Veteran's dental disability. As such, the records are not pertinent, and a waiver of such records is not required. 38 C.F.R. § 20.1305(c). 1. Entitlement to service connection for a dental disability for disability compensation purposes. Generally, to establish service connection a Veteran 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." Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 133637 (Fed. Cir. 2006). Disability compensation and VA outpatient dental treatment may be provided only for certain specified types of service-connected dental disorders. For other types of service-connected dental disorders, the claimant may receive treatment only and not compensation. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150, 17.161. Dental disabilities that may be awarded compensable disability ratings are set forth under 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. These disabilities include chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss of the mandible, nonunion or malunion of the mandible, loss of the maxilla, nonunion or malunion of the maxilla, limited temporomandibular motion, loss of the ramus, loss of the condyloid or coronoid processes, loss of the hard palate, loss of teeth due to the loss of substance of the body of the maxilla or mandible and where the lost masticatory surface cannot be restored by suitable prosthesis, when the bone loss is a result of trauma or disease but not the result of periodontal disease. 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are to be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment. 38 C.F.R. §§ 3.381, 17.161. As noted in the introduction above, the issue of eligibility for VA dental treatment was also perfected to the Board, and is addressed in the remand portion of the decision below. Here, the Board will only address whether the Veteran is entitled to service connection for VA compensation purposes. In this case, it is uncontroverted that the Veteran is currently diagnosed with missing front teeth, sustained trauma to his teeth in service, and that medical opinions of record link the missing teeth to the in-service trauma. However, there is no evidence that such trauma resulted in loss of bone or substance of the mandible, as is required in order for service connection for compensation purposes to be granted for a dental disability. The Veteran has only asserted that a helmet hit him in the mouth in service, which resulted in trauma that caused the loss of his front teeth. To the extent that the Veteran has attempted to argue that this event resulted in the loss substance of the maxilla or mandible, these statements are not competent as to provide such an opinion requires medical training and knowledge that is beyond that which may be expected of a lay person as well as objective imaging results. Jandreau, 492 F.3d 1372; Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Therefore, these assertions are entitled to no weight. The Veteran was provided with a VA dental examination in January 2020. The examiner noted that the Veteran had missing teeth, which he attributed to the Veteran's reported trauma in service. However, the examiner further stated that the Veteran's loss of teeth was not due to loss of substance of the body of the maxilla or mandible, nor was a diagnosis of any other dental disability provided at the time. The examiner further noted that x-ray imaging conducted at the time of the examination showed only that teeth 8, 9, and 10 were missing and a seven unit bridge from tooth 6 to tooth 11. There is no evidence that the examiner was either not competent or credible, and the examiner's assessment was based both on an objective examination and x-ray imaging taken at the time. As such, the Board finds that the examination report is entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In support of his appeal the Veteran submitted a September 2016 statement from a private dentist. In this statement the examiner noted the Veteran's report of trauma in service, and stated that the Veteran's loss of teeth could have potentially been due to a broken bone or a fracture or traumatization of the teeth themselves. The examiner stated that this in turn could have resulted in irreversible pulpal trauma or necrosis of nerve tissue resulting in the loss of teeth. However, the examiner at no point indicated that the Veteran had loss of substance of the mandible or maxilla nor was a diagnosis of any other compensable dental disability provided. While the examiner noted a possible broken bone, this was stated as a hypothetical or potential diagnosis, and not based on objective x-ray imaging. Further, a broken bone does not equate the with the loss of substance of the mandible or maxilla. As such, the private opinion does not establish the presence of a dental disability for which VA compensation may be granted. Treatment records are further silent for any indication that the Veteran's loss of teeth was attributable to loss of substance of the body of the maxilla or mandible, or a diagnosis of any other dental disability for which VA disability compensation may be awarded. Ultimately, the preponderance of the evidence is against a finding that the Veteran has any current dental disability for which compensation is payable. 38 C.F.R. § 4.150. The VA examiner noted that the loss of teeth was not due to a loss of substance of the body of the maxilla or mandible, and based this opinion on an examination of the Veteran and x-ray images taken at the time. The examiner further did not diagnose any other disability other than missing teeth. None of the other evidence, including the September 2016 private opinion, indicates that the missing teeth are due to loss of substance of the maxilla or mandible or provides a diagnosis of a compensable dental disability. The Board notes that in the April 2021 appellate brief the Veteran's representative argued first that it must be assumed that there was damage to the bedding the tooth sits in any case involving missing teeth. However, even ignoring the implication in this argument that all missing teeth must be due to damage to the bedding as opposed to other causes, damage or trauma to the teeth resulting in missing teeth does not equate to the loss of substance of the mandible or maxilla. As noted above, it is uncontroverted that the Veteran sustained trauma to his teeth in service. However, the evidence, including x-ray imaging, does not show that the Veteran's missing teeth are due to loss of substance of the maxilla or mandible. Next, the representative argued that although the Veteran did not lose a "substantial" potion of bone, without prior records it was impossible to say with certainty that there was zero bone loss. However, the brief does not explain why this is impossible. Indeed, the January 2020 VA examiner stated that based on an examination and x-ray imaging there was no evidence that the missing teeth were due to loss of substance of the maxilla or mandible. Without further supporting evidence showing why loss of substance cannot be ruled out based on either an objective examination or x-ray imaging, this argument is uncompelling. Finally, the representative highlighted the private opinion linking the loss of teeth to the reported in service trauma, and argued that this opinion should be controlling. However, it is not in dispute that the trauma in service caused the Veteran's missing teeth. Instead, the dispositive issue in this appeal is whether there is a dental disability for which VA disability compensation may be paid. To this end, the private opinion did not indicate that the Veteran's missing teeth were due to loss of substance of the maxilla or mandible, or provided a diagnosis of another compensable dental disability. As such, this argument is also unpersuasive. Based on the foregoing, the Board concludes that there is no basis under the law for the award of service-connected VA disability compensation for a current dental disability, as there is simply no evidence that the Veteran has a disorder falling under the categories of compensable dental conditions. Id. When, as here, the law is dispositive of the claim, it should be denied because of lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 42930 (1994). For these reasons, the claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for a dental disability for treatment purposes is remanded. As discussed in the introduction, the Veteran initial filed a claim for service connection for a dental disability for treatment purposes, not compensation purposes, which the RO denied in the decision on appeal. The Veteran subsequently perfected an appeal as to this issue, with the April 2019 hearing transcript noting that the issue on appeal was service connection for a dental disability for treatment purposes. The Board then remanded the issue for further development in July 2019. After the development was completed, in the subsequent supplemental statement of the case, the RO only adjudicated service connection for a dental disability was for compensation purposes, stating that the Veteran did not have a disability for which compensation may be paid. The RO did not in any way address whether service connection for a dental disability was warranted for treatment purposes. When a case is remanded by the Board, the AOJ must complete the ordered development and then reconsider the issue or issues on appeal in light of the newly developed evidence. 38 C.F.R. § 19.38. If the claim continues to be disallowed, a supplemental statement of the case must be issued readjudicating the issues on appeal and addressing the additional development. 38 C.F.R. §§ 19.31, 19.38. Here, the RO did not clearly and separately adjudicate the issue of entitlement to service connection for a dental disability for treatment purposes. While service connection for a dental disability for compensation purposes was denied, it is important to note that the regulations governing the award of compensation for a dental disability differ substantially from those governing the award of treatment for a dental disability. See 38 U.S.C. § 1712; 38 C.F.R. § 17.161. As such, a denial of service connection for a dental disability for compensation purposes would not necessarily inform a Veteran that a claim for service connection for a dental disability for treatment purposes had also been denied. Based on the foregoing, a remand is required for the issuance of a supplemental statement of the case adjudicating the issue of entitlement to service connection for a dental disability for treatment purposes. The matters are REMANDED for the following action: 1. Readjudicate the issue of entitlement to service connection for a dental disability for treatment purposes. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded the applicable time period in which to respond. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Wendell, 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.