Citation Nr: 22017666 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 16-23 901 DATE: March 25, 2022 ORDER Entitlement to service connection for teeth 8, 9, and 10 for purposes of dental compensation is denied. Entitlement to service connection for teeth 8, 9, and 10 for purposes of receiving Class II(a) VA dental treatment is granted. FINDINGS OF FACT 1. During active duty, the Veteran's tooth number 9 sustained trauma, which ultimately required a bridge for teeth 8 through 10. 2. The Veteran did not suffer tooth loss due to loss of substance of the body of maxilla or mandible caused by in-service trauma or osteomyelitis. CONCLUSIONS OF LAW 1. The claim for service connection for teeth 8, 9, and 10 for compensation purposes is without legal merit. 38 U.S.C. §§ 1110, 1712, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.381, 4.150 (2020). 2. The criteria for service connection for teeth 8, 9, and 10 for the purposes of receiving Class II(a) VA outpatient dental treatment is warranted. 38 U.S.C. §§ 1110, 1712, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.381, 17.161 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1980 to July 2000. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor his representative has raised any issues with the duty to notify or the duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. In January 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of this hearing is of record. The Veteran has not alleged any deficiency with his hearing testimony as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. The Board notes that, although new evidence was received after the December 2021 supplemental statement of the case (SSOC), the evidence is not pertinent to the claim, essentially duplicates evidence already associated with the file, or does not require waiver of initial Agency of Original Jurisdiction (AOJ) consideration, as the Veteran's substantive appeal was received after February 2, 2013. As such, the Board may proceed to adjudicate the claim as done below without prejudice to the Veteran. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be (1) competent evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 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 (2020). Compensation is available for loss of teeth if such is due to loss of substance of body of maxilla or mandible, but only if such bone loss is due to trauma or osteomyelitis, and not to the loss of the alveolar process as a result of periodontal disease, as such loss is not considered disabling. Id. at Note. 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. The Veteran is seeking entitlement to service connection for teeth numbered 8, 9, and 10 for purposes of both dental treatment and compensation. In his February 2015 notice of disagreement (NOD), the Veteran indicated that he fell onto the butt of an M-16 while serving at the Security Forces Academy in approximately November 1980. He asserted that this trauma led to the death of tooth number 9 and was the start of his dental problems with teeth numbered 8, 9, and 10. The Veteran's service treatment records document dental treatment related to trauma to tooth number 9. Service treatment records from 1982 and 1983 show examination of tooth number 9. In a July 1983 service treatment record, it was noted that tooth number 9 suffered trauma 2 years prior with apical lesion, apical resorbtion, or discolored. In April 1993, the Veteran was treated with Motrin and Penicillin for a tooth problem. In May 1993, it was noted that tooth number 9 was diagnosed nonvital with apical resorption in October 1982. The tooth was "traumatized" 2 years prior. A June 1999 service treatment record noted that the Veteran was undergoing surgery to remove the upper left central incisor (number 9). In a June 2000 service treatment record, the Veteran was examined regarding his fixed partial denture (FPD) number 8 through 10. In a February 2016 letter, Dr. Robertson noted that the Veteran presented in June 2013 with an anterior bridge from teeth 9 through 10 that was in complete disrepair. An attempt to repair the porcelain fractures as best as possible was made, but this was only a temporary solution for what needed to be complete refabrication of the bridge. Now, the bridge is in even worse shape since the Veteran cannot afford to replace the bridge. The dentist noted that this bridge was placed during military service. The cause of the need for a fixed bridge was the loss of tooth number 9. The maxillary central incisor was lost as a result of an accident which occurred during the Veteran's military service and was a direct result from what sounds like negligent behavior of another military employee during a motor vehicle operation. Dr. Robertson requested that VA replace the Veteran's bridge since this one is nonfunctional and without replacement. In a December 2019 Disability Benefits Questionnaire (DBQ), the Veteran was noted as being diagnosed with loss of teeth in June 1999. The Veteran claimed that he hit his face on the butt of a rifle in August of 1980, which started a cascade of problems with tooth number 9. The tooth was ultimately lost, and a bridge fabricated for teeth numbered 8 through 10. The examiner noted that the Veteran was on a pedal bike and was in an accident 17 years later. This damaged an otherwise serviceable bridge. He is seeking replacement of a 20-year-old bridge due to an accident that occurred outside the service. The examiner noted that the Veteran's loss of teeth is not due to loss of substance of body of maxilla or mandible without loss of continuity or to trauma or disease. The examiner noted that, while it is clear that tooth number 9 was lost due to trauma in service, it appears that the tooth was removed, and a permanent bridge was replaced. According to record, the Veteran was also given other options for restoration that included implant restoration. He ultimately chose a porcelain fused to metal (PFM) bridge for teeth numbered 8-10. This bridge was damaged due to a bike accident in 2016 that could have been potentially covered by an automobile insurance as the patient was on a bike on the roadway and was not due to failure from improper work. The average life of a PFM restoration is 5-7 years, which the patient tripled prior to the accident. Currently, the bridge is damaged. However, there are dental caries around the edges of the bridge that is not due to the accident. In a December 2019 VA opinion, the examiner determined that the clamed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that, while the loss of tooth number 9 is service connected, it was restored with the original bridge. The examiner indicated that he did not believe the accident that damaged the bridge in 2016 was at all service connected. Considering the pertinent evidence in light of the governing legal authority, the Board finds that service connection for loss of teeth for compensation purposes is not warranted. As noted, replaceable missing teeth are not considered disabling for VA disability compensation purposes. See 38 C.F.R. § 3.381 (a); see also 38 C.F.R. § 4.150. Further, there is no evidence that the Veteran has tooth loss due to loss of body of the maxilla or mandible caused by in-service trauma or osteomyelitis. As the Veteran essentially seeks service connection for loss of a replaceable tooth and the resultant treatment, and replaceable missing teeth can only be considered service connected for the purpose of establishing eligibility for outpatient dental treatment - and not for compensation purposes - the claim for service connection, for compensation purposes, must be denied. Where, as here, the law and not the evidence is dispositive, the claim must be terminated or denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). With regard to the Veteran's claim for entitlement to service connection for teeth numbered 8, 9, and 10 for purposes of dental treatment, the Board notes that outpatient dental treatment may be authorized by the Chief of Dental Service for beneficiaries defined in 38 U.S.C. § 1712 (b) and 38 C.F.R. § 17.93 to the extent prescribed and in accordance with the applicable classification and provisions set forth in this section. These categories include treatment for Veterans who have a compensable service-connected dental disability or condition (Class I eligibility); any treatment indicated as reasonably necessary for the one-time correction of the service-connected noncompensable condition (Class II eligibility); those having a noncompensable service-connected dental disability or condition adjudicated as resulting from combat wounds or other service trauma (Class II(a) eligibility); treatment for certain homeless and other enrolled Veterans eligible for a one-time course of dental care under 38 U.S.C. § 2062 (Class II(b) eligibility); treatment for Veterans who were detained as a prisoner of war (Class II(c) eligibility); treatment for Veterans 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); treatment for veterans having a dental condition professionally determined to be aggravating disability from an associated service-connected condition or disability (Class III eligibility); treatment for Veterans 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); treatment for Veterans who participate in a rehabilitation program under 38 U.S.C. chapter 31 (Class V eligibility); and treatment for Veterans who are scheduled for admission or who are otherwise receiving care and services under chapter 17 of 38 U.S.C. and have a dental condition that is clinically determined to be complicating a medical condition currently under treatment (Class VI eligibility). 38 U.S.C. § 1712; 38 C.F.R. § 17.161. As noted above, the Veteran has reported that he fell onto the butt of an M-16 in approximately November 1980, leading to the death of tooth number 9 and resulting dental problems with teeth numbered 8 and 10. Thus, the Veteran appears to be seeking Class II(a) outpatient treatment, which is authorized for those having a service-connected noncompensable dental condition or disability adjudicated as resulting from service trauma to the extent reasonably necessary for the correction of such condition or disability. 38 C.F.R. § 17.161. The Veteran's service treatment records reflect on multiple occasions that the Veteran's tooth number 9 was "traumatized" or suffered "trauma" in service, which is consistent with the Veteran's reports. While the December 2019 DBQ examiner determined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, the examiner did note the Veteran as being diagnosed with loss of teeth in June 1999. The examiner further noted the Veteran's claim of hitting his face with a rifle in August of 1980, as well as the placement of a bridge for teeth numbered 8 through 10. While the examiner went on to note that the Veteran's bridge was ultimately damaged due to a post-service bike accident in 2016, the examiner clearly stated that the average life of a PFM restoration is 5 to 7 years, which the patient had tripled prior to the accident. The Board acknowledges the Veteran's post-service bike accident. However, this does not change the fact that the Veteran suffered a loss of tooth number 9 due a trauma in service and required a bridge as a result ot this trauma, which he was given during service. Moreover, the December 2019 VA examiner specifically stated that the average life span of the PFM is only 5 to 7 years, thus indicating that continuous care for this trauma resulting in the loss of a tooth would be required, regardless of the post-service bike accident. Therefore, by extending the benefit of the doubt to the Veteran, the Board finds that the Veteran is eligible for Class II(a) VA outpatient dental treatment, which is defined as the treatment necessary to correct a dental condition incurred as a result of in-service trauma. 38 U.S.C. § 5107 (b). Accordingly, his claim is granted for treatment purposes only. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Durham, 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.