Citation NR: 9628402 Decision Date: 10/09/96 Archive Date: 10/25/96 DOCKET NO. 92-12 138 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to outpatient dental treatment by the Department of Veterans Affairs (VA). 2. Entitlement to a compensable evaluation for periodontal disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD John J. Crowley, Counsel INTRODUCTION The veteran served on active duty from August 1954 to April 1958 and from August 1961 to March 1986. This matter is currently before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs Regional Office (RO). In March 1993, the Board upheld the RO's denial of the veteran's claim. At that time, the sole issue before the Board is whether the veteran was entitled to outpatient dental treatment by VA. See 38 U.S.C.A. § 7105(a) (West 1991). The veteran filed a timely appeal to the United States Court of Veterans Appeals (Court). In December 1994, the Court vacated the Board's decision and remanded the case for further proceedings consistent with their determination. At that time, the Court indicated that the Board must adjudicate the issue of entitlement to a compensable evaluation for a “dental condition.” [citation redacted]. In August 1994, the General Counsel for the Department of Veterans Affairs (General Counsel) contacted the RO and requested that they “resolve the veteran's pending dental claims, if any.” In a response to the August 1994 communication from the General Counsel, the RO stated that no additional adjudicative action is at issue based on the Board's decision of December 1988. Within this December 1988 determination, the Board had awarded service connection for periodontal disease. A copy of this August 1994 statement was sent to the veteran's representative that month. The issue of a compensable evaluation for periodontal disease was not before the Board in March 1993. See 38 U.S.C.A.§ 7105(a) (West 1991). Nevertheless, based on the instructions of the Court, the Board must adjudicate the issue of entitlement to a compensable evaluation for periodontal disease. For reasons to become clear below, the issue of entitlement to a compensable evaluation for periodontal disease will be the subject of the remand section below. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he should receive VA outpatient dental treatment because he is service-connected for periodontal disease. He points out that he received such treatment and feels that it is unfair that treatment was discontinued in 1991. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1995), has reviewed and considered all of the evidence and material of record in the veteran's claims files. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board the August 1991 determination to discontinue the veteran's VA outpatient dental treatment is void ab initio, as not in accordance with the law, for the failure to give notice of the revocation of benefits which meets the requirements of pertinent VA law and regulations. Accordingly, the determination to revoke previously received dental treatment, based on a failure to give the veteran adequate notice, is void and the veteran's claim of entitlement to restoration of his VA outpatient dental treatment is allowed. FINDINGS OF FACT 1. All available, relevant evidence necessary for an equitable disposition of the veteran's appeal on the issue of entitlement to outpatient dental treatment by VA has been obtained by the RO. 2. The veteran, who was discharged from active service in March 1986, is service connected for periodontal disease which is rated as noncompensable. 3. From August 1989 to August 1991, the veteran received VA outpatient dental treatment, including treatment for a lost filling, a loose upper denture, cervical erosion and defective restorations. A pedicle graft was performed in August 1990. 4. In August 1991, the veteran's entitlement to outpatient dental treatment by VA was terminated without prior notice. The veteran was not given the opportunity to contest the termination of his outpatient dental treatment prior to the termination of treatment previously received. CONCLUSION OF LAW The failure to give the veteran notice of the proposed adverse action prior to the termination of the veteran's outpatient dental treatment in August 1991 was error. Consequently, as a result of the failure to adequately notify the veteran prior to terminating his benefits, the determination is void ab initio. 38 U.S.C.A. §§ 5104, 5107, 1712; 38 C.F.R. §§ 3.103, 3.500, 4.150, 17.123 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the undersigned finds that the veteran's claim of entitlement to outpatient dental treatment is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991 & Supp. 1995). That is, the Board finds that he has presented a claim which is plausible. The undersigned is also satisfied that all relevant facts have been properly developed and no further assistance to the veteran is required to comply with the duty to assist the veteran mandated by statute. I. Background The veteran was discharged from active service in March 1986. Service medical records reveal that the veteran underwent periodontal surgery in March 1978. In January 1987, the veteran claimed entitlement to service connection for “dental problems.” In December 1988, the Board granted the veteran service connection for periodontal disease. In January 1989, the RO issued a rating decision implementing the Board’s grant of service connection for periodontal disease, assigning a noncompensable evaluation under 38 C.F.R. § 4.150, Diagnostic Code 9999-9913 (1995). In April 1989, the RO sent a letter to the veteran which stated, in pertinent part: You have been granted a noncompensable, service-connected evaluation for periodontal disease. You are eligible for treatment for this condition at your nearest [VA Medical Center (VAMC)]. If you wish treatment for this condition, you should contact the Dental Clinic at the [VAMC]. In a June 1989 determination it is indicated by either the RO or the VAMC that the veteran is eligible for outpatient dental treatment under “II A.” A basis for this determination is not clearly given. From August 1989 to August 1991, the veteran received outpatient dental treatment for a wide range of dental disorders, including those not apparently associated with the veteran's periodontal disease. Dental problems during this period included treatment for a lost filling, a loose upper denture, cervical erosion and defective restorations. A pedicle graft was performed in August 1990. In an April 1991 statement, apparently received by the RO in May 1991, the veteran stated, in pertinent part: Request my dental needs be taken care of by the VAMC. I am [service-connected] for periodontal disease and request my dental work, that is currently needed, be done at VAMC, Little Rock. In May 1991, a copy of this request was sent to the dental department of the VAMC. On August 6, 1991, the following entry was made in the veteran's outpatient treatment records: [P]er information provided by VAC Office of Dentistry on a recent teleconf, and confirmed by Mr. Jerold Junipervaro VARO on 8/6/91 @ 8:45 A.M. - Veterans who are 0% sc [service-connected] have a noncompensable sc [service-connected disability] and have no dental eligibility. [The veteran] is 0% sc for periodontal disease and as such, is not eleg. for dental care. A report of contact the same day stated, in pertinent part: [The chief of dental services, VAMC] called in reference to the letter issued April 11, 1989[.] After discussion with Fred King I advised [the chief of dental services] that we were no longer advising veterans they had elig. to dental treatment based on 0% s/c. On August 12, 1991, the Chief of the Medical Administration Service informed the veteran that the VA could not approve his request for outpatient dental care because the review of his records revealed that he had “no compensable service- connected dental disabilities” and was not “eligible for outpatient dental treatment under any of the laws administered by the VA.” That month, the veteran filed a valid notice of disagreement to the August 1991 determination. The veteran noted that he had been receiving dental care at the VAMC in Little Rock, Arkansas, for the past two years. He noted that this decision “just came out of the clear blue sky!! No reason was given, just ‘we decided to drop you from any more dental care at the VA hospital.’” In his substantive appeal of March 1992, the veteran stated that entitlement to dental treatment should not have been taken away from him and that if a compensable rating is needed for such treatment, then his disease should be compensable. In this statement, the veteran indicated that he was first informed by a VA dentist over the telephone on August 5, 1991, that his August 6, 1991, appointment was being canceled and that he was not going to receive any more treatment from the VAMC. The veteran also noted that he received written notice that his treatment was being taken away when he traveled to the RO on August 12, 1991. The veteran also indicated that while at the RO he was provided VA Form 1-4107, Notice of Procedural and Appellate Rights. In March 1993, the Board denied entitlement to outpatient dental treatment, determining that the veteran did not meet the requirements for Class, I, II, II(a), or III eligibility for outpatient dental treatment. See 38 C.F.R. § 17.123 (1995). The Board also determined that other eligibility categories under that section were inapplicable to the veteran's case. Specifically, with respect to Class I eligibility, which is extended to veterans who have a compensable service-connected dental condition, the Board stated, in pertinent part: The veteran's service-connected periodontal disease is rated noncompensable. Although he suggests it should be rated compensable, it is clear that the noncompensable rating is proper. See rating criteria of 38 C.F.R. § 4.150 [(1995)]. The veteran has no Class I eligibility. With respect to Class II eligibility, which is extended to veterans who have a noncompensable service-connected dental condition, subject to various restrictions, including timely application and limitations on the amount of treatment, the Board stated, in pertinent part: The veteran's 1991 application for treatment is not timely, as he was discharged from service in 1986. Moreover, the dental treatment records show that, during the time the veteran erroneously received VA treatment, he received a complete episode of treatment (and much more). He now has no Class II eligibility. In October 1994, the Court vacated the Board decision and remanded the matter for further proceedings. In November 1994, the General Counsel filed a motion for reconsideration of the October 1994 decision. In [citation redacted], while denying the petition of the General Counsel to reconsider its October 1994 determination, the Court stated, in pertinent part: The Court denies the Secretary's motion, sua sponte vacates the October 14, 1994, decision, and issues this decision in its place. In [citation redacted], the Court, in its retrospection of its October 1994 decision, did not disagree with the Board's primary determination that the veteran was not entitled to outpatient dental treatment under 38 U.S.C.A. § 1712(b) (West 1991), though noted that, in stating the view as to the care received, the Board had failed to provide reasons or bases for its assertion that the veteran, pursuant to § 1712(c), had received a “complete” episode of treatment, which would preclude the right to additional treatment under 38 U.S.C.A. § 1712(b)(1)(B) (Class II eligibility under 38 C.F.R. § 17.123(b) (1995)). Id. at 212-213 (citing Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). Nevertheless, the Court indicated that the VA “may have” violated the veteran's right to procedural due process, citing to 38 C.F.R. §§ 3.103, 3.500(b)(2), 20.3 (1995) and to pertinent sections of the VA ADJUDICATION PROCEDURE MANUAL, M21-1 (MANUAL M21-1). The Court stated, in pertinent part: In light of these manual provisions, in denying entitlement to outpatient dental treatment, the [Board] should have addressed the issue of what notice the appellant had a right to, including a right to predetermination notice prior to the termination of such treatment. Until the issue of a right to predetermination notice is resolved in the negative, it would be premature for the Court to address a possible constitutional violation of due process, including a denial of equal protection. Id. at 216 (citations omitted). The Court also indicated that the Board must fully adjudicate the veteran's claim of entitlement to a compensable evaluation for his service-connected dental condition. Id. at 212. The Court stated that the veteran shall be afforded a complete dental examination. Id. at 216. In June 1995, the Board sought guidance from the General Counsel with respect to the following question: In denying entitlement to outpatient dental treatment, what notice does an appellant have a right to receive, and does it include the right to notice prior to the termination of such treatment? In a response to this question, the General Counsel, in April 1996, stated, in pertinent part: When denying health-care benefits, including dental treatment, VA must provide notice which includes: (1) The reasons for the decision, (2) a summary of the evidence relied on, and (3) an explanation of the procedures for obtaining review. Additionally, where the Department discontinues such benefits, notice must be given 60 days prior to the termination of benefits. VAOPGCCONCL 2-96. The General Counsel, concluding that this case “clearly involves a termination of benefits,” noted that the veteran had a scheduled dental appointment which the VAMC canceled over the telephone. The General Counsel stated that, under 38 U.S.C.A. § 5104 (West 1991), and the implementing regulations, written notice of the denial of continued dental benefits was required. Further, the General Counsel indicated that the failure of VA officials to provide any rationale for the decision, as required by § 5104 and the implementing circular, was in error. The General Counsel specifically indicated that the August 12, 1991, form letter sent to the veteran failed to meet the requirements of § 5104. The General Counsel stated, in pertinent part: As VA had been providing [the veteran] dental treatment for over two years, this explanation [contained within the August 12, 1991, form letter] is not adequate. The VAMC should have informed him that he would not receive further treatment because they had only recently discovered that the prior determination of eligibility was erroneous. Additionally, given that the VAMC had decided to terminate [the veteran's] treatment on the basis of information received from the Office of Dentistry in [the VA Central Office], which information was not specific to [the veteran], six days prior to the August 12 letter, we question the VAMC's alleged reliance on a review of the veteran's records. The August 1991 letter also did not meet the section 5104 requirement to inform [the veteran] of appealed rights. Thus, the letter failed to satisfy all three requirements imposed by section 5104. The General Counsel also noted that the VA had failed to furnish the veteran with proper notice in accordance with 38 C.F.R. § 3.103 (1995). A copy of the General Counsel's determination was given to the veteran's representative. Additional written argument was received in July 1996. That month, the veteran's representative stated that he had no additional evidence or argument to submit. II. Analysis Initially, the Board must note that neither the Court nor the General Counsel has materially disputed the determination that the veteran is not entitled to outpatient dental treatment under 38 U.S.C.A. § 1712(b) (West 1991). However, the critical issue in this case is whether the veteran was afforded adequate due process prior to the termination of his VA dental benefits. Under 38 U.S.C.A. § 5104 (West 1991), Congress provided that, in all cases where the VA makes a decision affecting the provision of benefits to a claimant, the veteran shall be provided timely notice of the same. Notice of the denial of benefits under § 5104 must include the reason for the decision, a summary of the evidence relied on, and an explanation of the procedures for obtaining review. Under 38 C.F.R. § 3.103 (1995), veterans are entitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief. Under 38 C.F.R. § 3.103(b)(2) (1995), no award of compensation, pension or dependency and indemnity compensation shall be terminated, reduced or otherwise adversely affected unless the beneficiary has been notified of such adverse action and has been provided a period of 60 days in which to submit evidence for the purpose of showing that the adverse action should not be taken. Finally, under Part IV of MANUAL M21-1, in order to reduce or discontinue a “benefit” under 38 C.F.R. § 3.500(b)(2) (1995), the adjudicator must prepare a proposed administrative decision to reduce or terminate benefits and give the beneficiary 60 days to submit evidence to show why the reduction should not be made. In this claim, the veteran appears to have been granted eligibility to VA dental treatment in June 1989. A review of the outpatient treatment records reveals that the veteran took advantage of this benefit for a two-year period from August 1989 until August 1991. Consequently, in light of the Court's October 1994 determination and the General Counsel opinion of April 1996, the Board must find that the veteran was entitled to notice of the revocation of his dental benefits in accordance with 38 C.F.R. § 3.103 (1995) prior to the termination of his dental benefits. In numerous statement received by the veteran, it appears that he is under the belief that due to the fact that he is service-connected for periodontal disease he is entitled to lifetime VA dental treatment of all his dental problems. This is not the case. Based on a review of the evidence above, there appears to have been some confusion at the VAMC as to what VA dental treatment the veteran was entitled. This confusion lead to the veteran receiving dental treatment for a two year period for which it does not appear he was entitled. In August 1991, the VAMC sought clarification of this issue from the RO, leading to the termination of the veteran’s dental treatment for his dental disorders that month. To receive VA outpatient dental treatment, a veteran must qualify under one of the categories of 38 U.S.C.A. § 1712 (West 1991); 38 C.F.R. § 17.123 (1995). Generally, veterans are eligible for one-time correction of noncompensable service-connected dental conditions if application for treatment is filed within one year of discharged from service. Among the eligibility categories to qualify for treatment many years after service are: Veterans with compensable service-connected dental conditions; those having noncompensable service-connected dental conditions due to combat wounds or a similar trauma; former prisoners of war; those having dental conditions which are associated with and aggravated by service-connected disability; and veterans having service-connected conditions rated at 100 percent disabling, either schedular or by reason of individual unemployability. See 38 U.S.C.A. § 1712 (West 1991) and 38 C.F.R. § 17.123 (1995). While it appears that, at this time, the veteran does not meet the requirements of 38 U.S.C.A. § 1712 (West 1991) and 38 C.F.R. § 17.123 (1995), the failure to give the veteran adequate notice in August 1991 of this revocation of dental benefits to which he had become accustomed, due to the confusion at the VAMC over what dental benefits the veteran was entitled, the Board must find this determination is void. As noted by the Court and the General Counsel, the determination to deny the veteran VA dental benefits failed to give an adequate reason for the decision, failed to give a summary of the evidence relied on, and failed to explain the procedure for obtaining review. In the past, it was general held by the VA that the pertinent sections cited above were not applicable to dental benefits. However, in light of the General Counsel opinion, this is not the case. In light of the above, it is the finding of the Board that the August 1991 determination to discontinue the veteran's entitlement to outpatient dental treatment by the VA failed to meet the requirements of 38 U.S.C.A. § 5104 (West 1991) and 38 C.F.R. § 3.103(1995), thus rendering its decision to end the veteran's entitlement to outpatient dental treatment void ab initio as not in accordance with the law. See Dofflemyer v. Derwinski, 2 Vet.App. 277 (1992); see also Brown v. Brown, 5 Vet.App. 413 (1993) and Lehman v. Derwinski, 1 Vet.App. 339 (1991). Because of this procedural defect, we do not now reach the issue of whether the August 1991 determination was correct in holding that the veteran was not entitled to outpatient dental treatment by VA. As stated in Bentley v. Derwinski, 1 Vet.App. 28 (1990), after- the-fact justification cannot resurrect a flawed rating, one which was arrived at in derogation of the regulations promulgated by the Secretary. Accordingly, where a benefit is ended without observing the applicable law, the decision upon which it is based is void from its inception, and the prior determination must be reinstated. See Schafrath v. Derwinski, 1 Vet.App. 589, 595-596 (1991). Accordingly, the restoration of the veteran's entitlement to outpatient dental treatment is warranted. ORDER Restoration of the veteran's entitlement to outpatient dental treatment by VA is granted. REMAND As noted above, the Court has requested that the Board adjudicate the issue of entitlement to a compensable evaluation for the veteran's service-connected periodontal disease. [citation redacted]. Further, the Board has required that the veteran be afforded a complete dental examination. Id. at 216. In light of the foregoing, the Board finds that further development, as specified below, is warranted. Accordingly, the case is REMANDED for the following development: 1. The RO should request the veteran to identify the names, addresses, and approximate dates of treatment for all health care providers who may possess additional records pertinent to his dental disorder. After securing any necessary authorization from the veteran, the RO should contact these health care providers in order to attempt to obtain copies of those treatment records which have not been previously secured. 2. The RO should arrange for a VA dental examination to determine the nature, extent and severity of the veteran's service-connected periodontal disease. The claims folder or the pertinent medical records contained therein must be reviewed by the examiner in conjunction with the examination. All necessary tests should be performed. The examiner should record pertinent dental complaints, symptoms, and clinical findings. The examiner should describe in detail the manifestations, if any, of the veteran’s service-connected periodontal disease. 3. The RO should review the medical report above to determine if it meets the requirements of paragraph 2 and requirements of the Court's December 1994 determination. If not, the report should be returned as inadequate for rating purposes. 38 C.F.R. § 4.2 (1995). 4. Thereafter, the case should be reviewed by the RO in light of the instructions mandated by the Court in [citation redacted]. If the RO determines that the award of entitlement to outpatient dental treatment by the VA was in error under the provisions of 38 C.F.R. § 3.500 (1995), the RO must ensure that the provisions of 38 U.S.C.A. § 5104 (West 1991), 38 C.F.R. § 3.103 (1995), and appropriate sections from Part IV of MANUAL M21-1 are followed, including, but not limited to, providing the veteran with the reasons for the decision, a summary of the evidence relied on, and explanation of the procedure for obtaining review. If the benefits sought are not granted, the veteran and his representative should be furnished with a supplemental statement of the case which includes all pertinent regulations and statutes and provide an opportunity to respond. The case should then be returned to the Board for further appellate consideration. In this regard, it is important to note that, if the RO seeks to end the veteran's entitlement to VA dental benefits, this issue will not be before the Board unless the veteran files a notice of disagreement and completes all procedural steps necessary to appeal a claim to the Board in accordance with 38 U.S.C.A. § 7105 (West 1991). The case should then be returned to the Board for further appellate consideration, if otherwise in order. STEVEN L. KELLER Member, Board of Veterans' Appeals (Continued on Following Page) The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West Supp. 1995), a decision of the Board of Veterans’ Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans’ Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans’ Appeals. Appellate rights do not attach to those issues addressed in the remand portion of the Board’s decision, because a remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1995). - 2 -