Citation Nr: 22015404 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 17-08 478 DATE: March 17, 2022 ORDER New and material evidence having been received, the claim of entitlement to service connection for dental condition is reopened. Entitlement to service connection for dental condition, to include as secondary to prostate cancer treatment is denied. FINDINGS OF FACT 1. The evidence added to the record subsequent to the June 2014 denial of service connection for a dental condition is related to an unestablished fact necessary to substantiate this claim and raises a reasonable probability of substantiating this claim. 2. The Veteran's tooth loss is not due to loss of the body of the maxilla or mandible (bone loss), there is no evidence that the lost masticatory surface for any tooth cannot be restorable by suitable prosthesis, and VA compensation is not payable for periodontal disease and any dental disorders related to such disease. CONCLUSIONS OF LAW 1. New and material evidence was received to reopen the claim for service connection for a dental condition. 38 U.S.C. § 5108, 7104(b), 7105(c); 38 C.F.R. §§ 3.156, 3.159(c)(4). 2. The criteria for service connection for loss of teeth for compensation purposes are not met. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150, 17.161. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1969 to November 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In the February 2017 VA Form 9, the Veteran indicated that he desired a hearing by live videoconference at a local VA office. The Veteran was notified of his scheduled hearing in an October 2021 letter. He was scheduled to testify before a Veterans Law Judge in January 2022. The Veteran cancelled his hearing, and his representative indicated in a February 2022 letter that the Veteran's appeal was ready for review by a Veterans Law Judge. Accordingly, the Board considers the hearing request withdrawn. See 38 C.F.R. § 20.704(e). New and Material Evidence Generally, a claim that has been denied in a final RO or Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The U.S. Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Meyer v. Brown, 9 Vet. App. 425, 429 (1996). The Veteran first filed for service connection for a dental condition in May 2013. His claim was denied in a June 2014 rating decision, which indicated that service connection may only be granted in the case of dental conditions involving teeth if there was service trauma, or a chronic or systemic disease with loss of substance of the mandible or maxilla bone and there is clinical evidence that dentures or implants cannot replace the missing teeth. The Veteran did not file a notice of disagreement or any new evidence within one year of the June 2014 rating decision; therefore, that decision because final. In December 2015, the Veteran again filed for service connection for a dental condition. His claim was denied in a March 2016 rating decision, which noted that although the Veteran had submitted new and material evidence, his claim was not related to service. The Veteran asserts that his dental condition has been caused by his service-connected prostate cancer or the treatment for that condition. VA treatment records added to the claims file since the prior rating decision indicate the Veteran has required ongoing treatment for dental issues. The Veteran's December 2015 statement regarding his dental condition is new, in that it was not of record at the time of the rating decision on appeal. It is material in that the Veteran's statement pertains to the basis of the prior denial and presents a reasonable possibility of substantiating the claim, as the Veteran has raised the possibility of secondary service connection with regard to his service-connected prostate cancer and that his teeth were removed due to a prior surgery. Additionally, further VA treatment records indicate that the Veteran has required ongoing treatment for his teeth and dental conditions. Accordingly, reopening of the claim for service connection for the Veteran's dental condition is warranted. Entitlement to service connection for dental condition, to include as secondary to prostate cancer treatment Under current VA regulations, compensation is only available for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150, including conditions of the mandible, maxilla, ramus, condyloid process, coronoid process, hard palate, and loss of teeth due to loss of substance of the body of the maxilla or mandible. See 38 C.F.R. § 4.150, Diagnostic Codes (DC) 9900-9916. These conditions include loss of whole or part of the mandible, nonunion or malunion of the mandible, loss of whole or part of the ramus, loss of whole or part of the maxilla, nonunion or malunion of the maxilla, loss of the condyloid or coronoid process, or loss of any part of the hard palate. Compensation is also available for loss of teeth only if this is due to loss of substance of body of maxilla or mandible; bone loss through trauma or disease, such as osteomyelitis, must be shown for compensable purposes. The loss of the alveolar process as a result of periodontal disease is not considered disabling. See 38 C.F.R. § 4.150, Diagnostic Code 9913. In addition, to be compensable, the lost masticatory surface for any tooth cannot be restorable by suitable prosthesis. Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease will be considered service connected solely for the purpose of establishing eligibility for outpatient dental treatment and cannot be considered for compensation purposes. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150. Otherwise, a veteran may be entitled to service connection for dental conditions including treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease, for the sole purposes of receiving VA outpatient dental services and treatment, if certain criteria are met. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 17.161. Rating activity should consider each defective or missing tooth and each disease of the teeth and periodontal tissues separately to determine whether the condition was incurred or aggravated in line of duty during active service and, when applicable, to determine whether the condition is due to combat or other in-service trauma, or whether the veteran was interned as a prisoner of war. 38 C.F.R. § 3.381(b). The evidence of record demonstrates that the Veteran was missing two teeth upon entry into service, noted as 32 and 17, which are the lower back molars (wisdom teeth). No evidence of loss of substance of body of maxilla or mandible is noted in the Veteran's service treatment records. Service treatment records are entirely silent for teeth damaged due to trauma. Specifically, there is no mention of chipped teeth, trauma due to close proximity to explosions, or any other type of trauma to the mouth during active service. The Veteran has not asserted any particular dental trauma. The Veteran indicated in a statement that he was told that radiation therapy, which was used to treat his service-connected prostate cancer, could cause the loss of teeth. The Board notes VA treatment records associated with the claims file do not contain any indication of loss of substance of body of maxilla or mandible. Although the Veteran has undergone tooth extractions during the period on appeal, there is no evidence of record that his tooth loss is due to the loss of substance of body of maxilla or mandible during service. April 2013 VA treatment notes indicated that the Veteran's teeth extractions were not related to any trauma or condition that developed as a result of military service. No medical records or dental records available indicate that the Veteran suffers from loss of substance of body of maxilla or mandible. A March 2019 VA dental treatment note indicated there was no evidence of bony pathology. Additionally, the evidence does not support a finding that the Veteran has been diagnosed with any of the dental and oral conditions listed in 38 C.F.R. § 4.150. There is no diagnosis of record for loss of whole or part of the mandible, nonunion or malunion of the mandible, loss of whole or part of the ramus, loss of whole or part of the maxilla, nonunion or malunion of the maxilla, loss of the condyloid or coronoid process, or loss of any part of the hard palate, for which service-connected compensation could be granted. See 38 C.F.R. § 4.150, DCs 9900-9916. Under these circumstances, a basis upon which to establish service connection for a dental condition has not been presented. Notably, the Veteran has not submitted any competent evidence showing that he suffers from any of the disabilities included under 38 C.F.R. § 4.150. The Board has considered his lay testimony and arguments. As indicated above, this claim turns on the question of whether the Veteran has a dental disability for which service connection for compensation purposes may be granted. As the Veteran is not shown to have the appropriate medical training and expertise, he is not competent to render a probative opinion on such a medical matter. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board notes that the Veteran has not been afforded a VA examination regarding this condition. However, the Board finds that a VA examination is not warranted. The VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, (3) an indication that the disability or persistent recurrent symptoms of a disability may be associated with the veteran's service, but (4) there is insufficient competent medical evidence on file to decide the claim. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Here, the Board finds that no VA examination is required because there is no credible evidence of a current dental disability, as defined by VA regulations, and there is no evidence establishing that an event, injury, or disease occurred in-service or manifested during the applicable presumptive period as to a dental disorder. Specifically, there is no evidence of a dental disability for compensation purposes and there is no competent and credible evidence of an in-service injury or disease, ongoing symptoms, or competent and credible evidence of a causative link between a dental disorder and service or service connected disability, so as to trigger the duty to provide a VA examination. Finally, insofar as the Veteran's claim for service connection for a dental disorder encompasses a claim for treatment purposes, the Board does not address that claim at this time as it does not appear by any evidence of record that the Veteran has been denied treatment for his dental disorder at any time throughout the appeal period. In fact, VA treatment records indicated the Veteran has received VA dental treatment several times during the period on appeal. If the Veteran wishes to pursue a claim for dental treatment, such claim may be pursued with the appropriate AOJ. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Geer, 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.