Citation Nr: 22010531 Decision Date: 02/24/22 Archive Date: 02/23/22 DOCKET NO. 18-05 819 DATE: February 24, 2022 ORDER Restoration of service connection for damage to teeth 6 and 7 is denied. Entitlement to a compensable rating for damage to teeth 6 and 7 is denied. FINDINGS OF FACT 1. The grant of service connection for damage to teeth 6 and 7 in a May 2015 rating decision was clearly and unmistakably erroneous. 2. As service connection for damage to teeth 6 and 7 has been severed, an increased rating is not warranted by a matter of law. CONCLUSIONS OF LAW 1. The criteria for restoration of service connection for damage to teeth 6 and 7 are not met. 38 U.S.C. §§ 1110, 1712, 5109A (2021); 38 C.F.R. §§ 3.103, 3.105, 3.303, 3.381, 4.150 (2021). 2. The criteria for entitlement to a compensable rating for damage to teeth 6 and 7 are not met. 38 U.S.C. §§ 501, 1155; 38 C.F.R. § 3.400(o). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1969 to September 1970. These matters come before the Board of Veterans' Appeals (Board) on an appeal from May 2015 and October 2015 rating decisions by a Department of Veterans Affairs (VA) Regional Office, which is the Agency of Original Jurisdiction (AOJ). In October 2021, the Veteran testified before the undersigned Veterans Law Judge, and a transcript of the hearing is associated with the record. At that time, the Veteran primarily argued for an earlier effective date for a 100 percent rating due to service-connected posttraumatic stress disorder. The Veteran contends that the assigned effective date was a clear and unmistakable error. As noted in the hearing, this issue is not currently on appeal, and the Veteran has subsequently filed a claim for an earlier effective date based on clear and unmistakable error. 1. Whether the October 2015 severance of service connection for damage to teeth 6 and 7 was proper. The Veteran generally contends the October 2015 severance of service connection was improper. In this regard, the Veteran testified that he did not contest the rating for his teeth and understood he could not get compensation for his teeth. After a review of the record, it was determined the May 2015 grant of service connection misapplied the pertinent law and regulation, and the Veteran's disorders are not a disability for compensation purposes. Therefore, the grant of service connection was clearly and unmistakably erroneous, and severance of service connection was proper. Service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (CUE) (the burden of proof being on the Government). 38 C.F.R. § 3.105(d). VA must assure both that due process has been observed in the process of severance and that CUE exists in the award of service connection. 1. Due Process When severance of service connection is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. The claimant will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken, and the award will be reduced or discontinued, if in order, effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(d). The initial question for the Board is whether the AOJ followed the due process requirements of 38 C.F.R. § 3.105(d) for severing service connection. The AOJ originally granted service connection for damage to teeth 6 and 7 in a May 2015 rating decision, effective December 8, 2013. The Veteran appealed the assigned rating therein, and in a July 2015 rating decision, the AOJ proposed to sever service connection for this disability. The AOJ stated that the decision to grant service connection was clearly and unmistakably erroneous because the type of damage to the Veteran's teeth was not a disability for compensation purposes. In an October 2015 rating decision, the AOJ severed service connection for the teeth damage. The AOJ reiterated the findings from the July 2015 rating decision and concluded that severance was proper. The AOJ followed the proper due process steps for severing service connection. The AOJ issued the proposed rating in July 2015, and the Veteran was notified at his latest address of record of this contemplated action and furnished detailed reasons therefor and was given 60 days for the presentation of additional evidence to show that service connection should be maintained in a July 2015 notice letter. The AOJ issued the October 2015 rating decision, which severed service connection prospectively effective January 1, 2016. The resulting period for which the Veteran was in receipt of service connection began on December 8, 2013, and ended January 1, 2016, a period of less than ten years. 38 C.F.R. § 3.957. Notice of this rating decision, plus his appeal rights, was sent to the Veteran on October 19, 2015. The January 1, 2016, date was greater than the last day of the month in which a 60-day period from the date of the October 2015 notice expired. Thus, all due process requirements were met in the severance of service connection for damage to teeth 6 and 7. 38 C.F.R. § 3.105(d). 2. Existence of CUE in the Award of Service Connection Having met the due process requirements, the remaining question before the Board in this case is whether the grant of service connection for damage to teeth 6 and 7 was clearly and unmistakably erroneous. The Board concludes that the severance of service connection was proper because the teeth damage was not a disability for compensation purposes and the AOJ misapplied the law in granting service connection. To establish that a grant of service connection was the product of CUE, VA must show that (1) either the correct facts as they were known at the time were not before the adjudicator, the adjudicator made an erroneous factual finding, or the statutory or regulatory provisions were incorrectly applied; (2) the alleged error was undebatable, not merely a disagreement as to how the facts were weighed or evaluated; and (3) the error manifestly changed the outcome of the prior decision. See Allen v. Nicholson, 21 Vet. App. 54, 58-59 (2007) (internal citations omitted). A clear and unmistakable error is one about which reasonable minds could not differ. See 38 C.F.R. § 3.105(a)(1)(i). In most respects, the CUE standard for severing service connection under 38 C.F.R. § 3.105(d) is equivalent to the CUE standard for reversing or revising a prior final decision under 38 C.F.R. § 3.105(a). See Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). However, the determination is not limited to the law and the record that existed at the time of the original decision. VA may consider medical evidence and diagnoses that postdate the original award of service connection to demonstrate that the diagnosis on which service connection was predicated is clearly erroneous. Stallworth v. Nicholson, 20 Vet. App. 482, 488 (2006). Turning to the evidence of record, the Veteran initially applied for service connection for "severe damage to teeth caused by percussion." See December 2014 Fully Developed Claim. He then underwent a VA dental examination in April 2015. The examiner noted he had loss of teeth from April 1970. Specifically, the Veteran reported that in April 1970 he sustained a shrapnel injury to mouth, fracturing teeth 6 and 7. The teeth were temporarily stabilized at a rear area in Vietnam, and they have had restorations over the years, with the latest more than five years prior to 2015. The teeth were in a state of good repair, with no visible needs at the time of the examination, and the Veteran had no dental complaints of this area or adjacent dental structures. Importantly, the Veteran did not have anatomical loss or bone injury to mandible or maxilla. Based on this examination, the AOJ granted service connection for damage to teeth 6 and 7 in the May 2015 rating decision. However, the Veteran filed a notice of disagreement to the assigned rating, and in processing that claim, the AOJ discovered that service connection had been granted in error. The three-element test for service connection requires evidence of: (1) 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 in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Upon review of the evidence, the grant of service connection in May 2015 was clearly and unmistakably erroneous as the AOJ initially incorrectly applied the law and regulations pertaining to dental disabilities. Specifically, under current legal authority, compensation is only available for certain types of dental and oral conditions, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla. See 38 C.F.R. § 4.150. Compensation is available for loss of teeth only if such loss is due to loss of substance of the body of the maxilla or mandible during service due to trauma or disease such as osteomyelitis, and not to the loss of the alveolar process as a result of periodontal disease. 38 C.F.R. § 4.150, Code 9913 (Note). Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease cannot be service connected for purposes of compensation. 38 C.F.R. § 3.381. Here, the VA examination noted that the Veteran had loss of teeth and damaged teeth from service, caused by a shrapnel injury. However, that examination does not show, and the Veteran does not contend, that he had loss of substance of the body of the maxilla or mandible. Rather, it explicitly denies any such loss. Further, the record does not otherwise contradict this finding. Therefore, the Veteran does not have a disability for which compensation can be awarded. Having found a clear error, the Board must also inquire as to whether the error manifestly changed the outcome of the decision that granted service connection. Allen, 21 Vet. App. at 58-59. In this regard, the error was a misapplication of the law. The law otherwise forbids service connection for the Veteran's damage to teeth 6 and 7, and thus it manifestly changed the outcome of the claim. Given the foregoing, the Board must conclude that the award of service connection for damage to teeth 6 and 7 did involve a clear and unmistakable error upon which reasonable minds would not disagree, as the grant was for an injury that is not a disability for VA compensation purposes. See Fugo v. Brown, 6 Vet. App. 40, 43 (1993). Accordingly, the severance of service connection for damage to teeth 6 and 7 on the basis of clear and unmistakable error was proper, and the appeal is denied. 2. Entitlement to an initial compensable rating for damage to teeth 6 and 7. The Veteran contends that his teeth damage was more severe than was compensated by the assigned noncompensable rating, and thus a higher rating was warranted. However, pursuant to 38 C.F.R. § 3.400(o), a retroactive increase or additional benefit will not be awarded after basic entitlement has been terminated, such as by severance of service connection. As noted in the earlier section, the October 2015 severance of service connection for damage to teeth 6 and 7 was proper, and upheld herein. The law clearly is dispositive as it prohibits a retroactive increase once basic entitlement has been terminated. Accordingly, the Board finds that the Veteran lacks entitlement under the law for a higher initial disability rating for teeth damage where service connection for such has been properly severed; therefore, the request for a higher disability rating must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). Therefore, the claim for a compensable rating from December 8, 2013, to January 1, 2016, for damage to teeth 6 and 7 is denied. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jonathan M. Estes 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.