Citation Nr: 24012000 Decision Date: 03/14/24 Archive Date: 03/14/24 DOCKET NO. 20-01 064 DATE: March 14, 2024 REMANDED Entitlement to service connection for a dental disability, to include for treatment purposes, is remanded. REASONS FOR REMAND The Veteran had active naval service from January 1978 to August 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2017 rating decision issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In January 2022, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This matter was previously before the Board in September 2022 at which time the case was remanded to the AOJ for additional development. The case is once again before the Board. Disability compensation and VA outpatient dental treatment may be provided 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. These disabilities include chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss of the mandible, nonunion or malunion of the mandible, 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. Thus, in order to establish service connection for VA compensation purposes, it is not enough to show that the teeth were lost due to trauma during active-duty service. The evidence must demonstrate that the trauma resulted in loss of substance of the maxilla or mandible, which then resulted in loss of teeth. VA's General Counsel has held that dental treatment of teeth, even extractions, during service does not constitute dental trauma. See VAOPGCPREC 5-97, 62 Fed. Reg. 15,566 (1997). Under 38 C.F.R. § 3.381, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal diseases are to be considered service-connected only for the purpose of establishing eligibility for outpatient dental treatment as provided in 38 C.F.R. § 17.161. The Veteran asserts that he has a present dental condition due to various events in service to include radiation exposure, residuals from extracted molars, and to service trauma involving his participation in a research experiment that required that he be fitted with a mouth guard. Regarding the research experiment, there is a June 2021 affidavit on file from a physician who served as Deputy Scientific Director and Chief of the Human Research Division. This physician stated that candidates with periodontitis (gum disease), severe cavities, missing teeth, or severely misaligned teeth were disqualified from the experiment since those conditions could interfere with correct placement of the mouth-mounted transducer packages. He also stated that following the initial dental examinations at the Naval Regional Dental Clinic, additional dental work was performed on the subjects to ensure a precise fitting of the module for the mouth-mounted transducer packages. In terms of a present dental condition, there is conflicting dental evidence. An August 2017 dental consult note from a private dental practice (Harris Dental Clinic) shows that radiographs revealed horizontal and vertical bone loss as well as missing teeth and "hopeless teeth". These records include an undated, unsigned record, stating that "this patient is in dire need of extensive dental work," and it contains an opinion that there is "a direct correlation attributable to human research dental work and subsequent service-connected procedures". In contrast, there is an August 2023 VA contract dental examination reporting showing that panographic/intraoral imaging was performed revealing nothing abnormal. This report concludes that there was no objective evidence of a dental disability, and no record of injuries, just fillings. In consideration of this conflicting dental evidence, the Veteran should be afforded a new dental examination to clarify whether he has a present dental disability as claimed. 38 U.S.C. § 5103A(d). Notably, the Veteran's representative requested in written argument in January 2024 that the Veteran be given the opportunity for a new examination if the claim could not be granted. Also, the private dental records in August 2017 state that additional reports would be provided upon request. Accordingly, the AOJ should make a request for any additional dental records related to the August 2017 dental consult as well as any other outstanding dental records. 38 U.S.C. § 5103A(b). Lastly, in addition to the Veteran's assertion that his dental disability is related to radiation exposure, inservice molar extraction, and his participation in a human research experiment, the Board notes that his service treatment records show that he sustained multiple head trauma and a nasal fracture in September 1979 after he was hit in the nose with a fist and fell to the ground hitting the right side of his temple area. Additional service treatment records received in January 2023 show that the findings related to this incident were positive for a tender right jaw. Accordingly, the new dental opinion should include consideration of this service trauma. The matter is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Harris Dental Clinic regarding his dental consult in August 2017, in addition to any additional private dental treatment he has received. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 2. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of any dental disability that may be present. Any indicated studies should be performed. After examining the Veteran and reviewing his claims file, to include the August 2017 private dental consult records and the August 2023 VA contract dental examination report, the examiner should identify all dental disabilities that are present. For each diagnosis identified, the examiner should provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the disability manifested during or is etiologically related to the Veteran's active service, to include his service as a human research subject and any modifications required for those experiments, and the tender right jaw related to head trauma and a nose fracture in September 1979. The examiner should also provide an opinion as to whether any dental disability is due to loss of substance of the body of the maxilla or mandible during service due to in-service trauma or disease such as osteomyelitis. A rationale for all opinions expressed must be provided. (Continued on the next page) ? Confirm that the VA examination report and all opinions provided comport with this remand and undertake any other development found to be warranted. 3. Then, readjudicate the issue on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Shawkey, 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.