06-11 084

• Court: Board of Veterans' Appeals
• Decided: December 6, 2010
• Docket: 06-11 084
• Status: Unpublished

Opinion

Citation Nr: 1045636 Decision Date: 12/06/10 Archive Date: 12/14/10

DOCKET NO. 06-11 084 ) DATE ) )

On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania

THE ISSUE

Entitlement to service connection for a dental disability for VA compensation purposes.

Entitlement to service connection for a dental disability for VA treatment purposes.

REPRESENTATION

Appellant represented by: Pennsylvania Department of Military and Veterans Affairs

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Dan Brook, Counsel

INTRODUCTION

The Veteran served on active duty from January 1984 to March 1984 and from March 2002 to August 2002.

This appeal to the Board of Veterans' Appeals (Board) arises from a rating decision by the Pittsburgh Regional Office (RO) of the Department of Veterans Affairs (VA).

In September 2010 the Veteran testified during a Board hearing at the RO before the undersigned Veterans Law Judge; a transcript of that hearing is of record.

FINDINGS OF FACT

1. The Veteran is reasonably shown to have a dental disability of tooth number 6 analogous to a dental abscess.

2. The dental disability to tooth number 6 is reasonably shown to have resulted from dental trauma in service due to a fall.

3. Missing teeth in the absence of involvement of the bones of the jaw are not disabilities for which VA compensation is paid.

CONCLUSIONS OF LAW

1. The criteria for service connection for dental disability for compensation purposes are not met. 38 U.S.C.A. §§ 1110, 1712 (West 2002); 38 C.F.R. §§ 3.381, 4.150 (2010).

2. With resolution of reasonable doubt in the appellant's favor, the criteria for service connection for dental disability to tooth number 6 and any associated teeth as medically indicated, for VA dental treatment purposes have been met. 38 U.S.C.A. §§ 1110, 1712 (West 2002); 38 C.F.R. §§ 3.381, 4.150, 17.161 (2010).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2009)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009).

Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claims, as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.

VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id.

In this appeal, in a September 2004 pre-rating letter, the RO provided notice to the Veteran regarding what information and evidence was needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The November 2004 RO rating decision reflects the initial adjudication of the claim after issuance of the September 2004 letter.

Post rating, a March 2006 letter provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. After issuance of the March 2006 letter, and the opportunity for the Veteran to respond, a July 2009 supplemental statement of the case reflects readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of this latter notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect).

The Board notes that the Veteran was not informed of the specific provisions pertaining to obtaining compensation for dental disability in a VCAA notice letter. However, the March 2006 statement of the case did provide notice of these provisions. Additionally, the Veteran and his representative have both essentially argued that the Veteran was exposed to dental trauma during service, showing a general understanding of what is necessary to establish the Veteran's claim for service connected compensation. Accordingly, the Board finds that any error in the content of the VCAA notice provided was "cured by actual knowledge on the part of the claimant." See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007).

Additionally, in regard to the Veteran's claim for dental treatment, given the favorable outcome detailed below, an assessment of VA's duties under the VCAA is not necessary.

The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided. Pertinent medical evidence associated with the claims file consists of a portion of the service treatment records, private treatment records and VA treatment records. Also of record and considered in connection with the appeal is the transcript of the September 2010 Board hearing, along with various written statements provided by the Veteran and by his representative on his behalf.

The Board notes that some of the Veteran's service treatment records have not been obtained. In this regard, in a June 2009 memorandum, the RO documented that they attempted to obtain the additional records from the Records Management Center, from the Veteran, from the Veteran's unit, the 171st Air Refueling Wing, and from the National Personnel Records Center. Unfortunately, they received negative responses from all these sources. Additionally, an exhaustive search was made of the RO but no additional service treatment records were uncovered. As the evidence of record does not suggest another source for obtaining the additional service treatment records, the Board finds that the RO has met its duty to assist in attempting to obtain these records.

The Board also notes that during the September 2010 Board hearing, the Veteran reported that he had been seen by a dentist at the Highland Drive VA Medical Center in October 2004 and had also subsequently been seen by a private dentist. Records from these sources do not appear to be contained in the claims file. However, the Board finds that a remand to attempt to obtain records from these sources is not necessary. As, it is already clear from the record and from the Veteran's own allegations that the Veteran's dental injury in service was limited to replaceable and/or abscessed teeth, documentation from these sources would not form a basis for granting service connected compensation for the Veteran's dental disability (see discussion of compensation below). Additionally, the Board is also granting service connection for treatment purposes for the tooth the Veteran alleges was injured in service (i.e. tooth six) so attempting to obtain the additional records in conjunction with his claim for treatment is also unnecessary. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (A remand, which would impose unnecessary additional burdens on adjudication resources, with no benefit flowing to the Veteran is unnecessary).

In summary, the Board finds that there is no additional notice that should be provided, nor is there any indication that there is additional, available evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, VA's duties to notify and assist have been met and the Veteran is not prejudiced by the Board proceeding with appellate review.

II. Factual Background

The limited service treatment records available include a couple of April 2002 progress notes showing that the Veteran suffered dental problems while serving in Bahrain. An April 16, 2002 progress note shows that the Veteran complained that he had lost a filling one month prior. It was noted that he was not currently having any pain or problems and a dental referral was made. A subsequent April 19, 2002 dental progress note indicates that the Veteran was having severe pain in a dental bridge in a different area of his mouth. The diagnosis was dental pain and it was noted that there was no dental treatment on site. Accordingly, the Veteran was referred to the Naval Support Activity (NSA) in Bahrain for treatment.

A June 2003 progress note shows that the Veteran received an apicoectomy of tooth number 6. After the operation the Veteran reported swelling into his eye and tenderness in the area around where the apicoectomy was performed. The treating dentist found that the tissues were healing well with no signs of infection.

VA treatment records show that the Veteran received a dental consultation in May 2004. The Veteran reported that during the Persian Gulf War he fell while in the Bahrain/Kuwaiti area, resulting in injury to tooth six and the loss of tooth 7. He reported some discomfort with his maxillary right canine tooth. It was noted that he had recently had an apicoectomy done for tooth 6. The Veteran was afraid that because there was some scar tissue above the tooth and the tissue was a little raised or not smooth, that there was still an infection there. However, examination did not show any infection or pain. A periapical X- ray image was made and it showed that an existing lesion was in the process of healing. It was explained that the healing could take six months to a year to reach completion with a bone fill in. The consultative examiner found that no treatment was indicated.

The examiner noted that there was little gum recession at the facial cervical area of tooth 6. It was not visible, not seen and would only be an elective periodontal procedure to repair if it ever concerned the Veteran. The Veteran had a complex fixed bridge, with four units of prosthetic crowns attached in one piece, involving the replaced tooth #7, #6, missing tooth #5, (by-passing a closed space where #4 would be) and finally anchored on the abutment tooth #3, first molar. The Veteran did not really have any pain and the examiner found that the Veteran should be patient and allow the apical area of tooth 6 to heal.

In his August 2004 claim the Veteran indicated that during service, he was working on fuel bladders in a dike area. While he was walking up the steps from the dikes he slipped and fell, injuring his mouth and teeth. He reported the accident to the senior NCO and then went to the clinic. An appointment was then made for him to see a dentist at NSA Bahrain.

In a June 2005 statement, a fellow serviceman of the Veteran indicated that during March 2002, 12 members of the Air National Guard's 171st Air Refueling Wing were activated and mobilized in support of Operation Enduring Freedom, including himself and the Veteran. The serviceman noted that he and the veteran were sent to a remote location on the island of Bahrain to serve as support for air operations. The serviceman noted that on the night of April 18, 2002, he was the night shift fuel operations supervisor. One of his initial duties on shift was to assign a crew to inventory all usable JP-8 jet fuel available in their storage areas. Once this was completed he determined that the inventory was low. He then assigned the Veteran to begin the transfer of fuel. While the Veteran was gauging tank capacities, part of a plank connecting one tank area to another gave way causing him to fall. The ground that he fell on was not dirt or sand but part of a dike retainment area made of large rocks and boulders. The serviceman noted that the Veteran suffered damage to his hands, arms, face and jaw. He finished his shift and then went immediately to the clinic for treatment. His jaw and teeth injuries were beyond the means of the remote clinic so he was referred to the Bahrain Naval Station. The fellow serviceman noted that he could see that after treatment, the Veteran was in pain and had to return for further treatment due to complications from infection.

In a June 2005 statement, the Veteran indicated that he felt that due to the lack of sanitary conditions in Bahrain he acquired an infection to the right upper teeth and gum area, which resulted in the surgery to scrape the gum and clear-up infection. He also noted that he had had two additional surgical treatments in 2003 and 2004 and that he was going to need dental implants to resolve the problem.

During the September 2010 Board hearing, the Veteran testified that on April 18, 2002, he was working the night shift and had to make sure the fuel gliders were even and the right fuel was going to the correct glider for the next shift coming up. He was walking on one of the boards that had been placed over the rocks in the fuel glider area to allow the men to move around the area. One of the boards apparently gave out and he fell on his shoulder and arm. He bit down pretty hard and his upper tooth hit his bottom tooth and created an instant problem. He thought he had broken the entire existing bridge in his mouth. He went to the medical clinic and was given Tylenol 3 with Codeine. The next morning he went over to the NSA Bahrain. He noted that at that point his mouth had swollen up. He waited for the Navy Dentist to come off of a ship and after examining the Veteran he determined that he had to do an apicoectomy on one of his teeth, which was hooked to his existing bridge.

The dentist had to go above the gum line and take out the nerve because the Veteran was in extreme pain. Then he had to do a procedure on a nerve in another area, then fill in the area and suture it. The veteran received prescriptions for pain, along with an antibiotic for infection. The following week the Veteran returned for follow up and the dentist said that everything looked like it was healing well. He removed the sutures and when the Veteran came home, he did not have any problems until June 2003.

At that point, he was back from the Persian Gulf and on duty with the Air National Guard, and his jaw started to bother him again. He went to see an oral surgeon, who found that he needed another apicoectomy. When he opened the Veteran up to do the procedure, the oral surgeon found a lot of infection along with a lesion. A biopsy was performed, which determined that the lesion was not cancerous. When the Veteran came back for follow-up, the oral surgeon found that everything looked good and was hopeful that the Veteran would not continue to have problems. He noted that if the Veteran did get another infection, it was best to have the bridge removed, allow the area to heal for about six months and then go back and perhaps get implants.

The Veteran reported that he subsequently had another apicoectomy surgery in April 2004, done by a different oral surgeon due to him developing another infection. The oral surgeon informed him that he did not know if the surgical intervention would keep him from having future problems. Thus, the Veteran was concerned that he might need implants, which would be a very costly procedure.

Further, the Veteran indicated that he currently had some level of constant infection in the affected area. He had taken antibiotics for the infection but it had not eliminated it. He noted that the oral surgeon who did the April 2004 surgery had indicated that the problem would probably flare up again.

III. Law and Regulations

Under current VA regulations, compensation is only available for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla. Compensation is available for loss of teeth only if such is due to loss of substance of body of maxilla or mandible due to trauma or disease such as osteomyelitis, but not periodontal disease. 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.

Legal authority describes various categories of eligibility for VA outpatient dental treatment, to include Veterans having a compensable service-connected dental condition (Class I eligibility); one-time treatment for Veterans having a noncompensable service-connected dental condition (Class II eligibility); those having a noncompensable service-connected dental condition adjudicated as resulting from a combat wound or other service trauma (Class II(a) eligibility); those who were detained as a POW (Class II(b) and Class II(c) eligibility); those 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); those having a dental condition professionally determined to be aggravating disability from an associated service- connected condition or disability (Class III eligibility); those whose service-connected disabilities are rated at 100 percent by schedular evaluation or who are entitled to the 100 percent rating by reason of individual unemployability (Class IV eligibility); those who participate in a rehabilitation program under 38 U.S.C. chapter 31 (Class V eligibility) and those who are scheduled for admission or who are otherwise receiving care and services under chapter 17 of 38 U.S.C., where dental care is medically necessary (Class VI eligibility). 38 U.S.C.A. § 1712 (West 2002 & Supp. 2009); 38 C.F.R. § 17.161 (2009).

When all of 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

IV. Analysis

First, considering compensation, in the instant case, there is no indication of impairment of the mandible, loss of a portion of the ramus, or loss of a portion of the maxilla. There is also no evidence of loss of teeth due to loss of substance or body of the maxilla or mandible. Instead, the Veteran's problems of recurrent infection to tooth #6 are essentially analogous to a dental abscess, generally defined as a localized collection of pus buried in tissues, organs or confined spaces. See Dorlands Illustrated Medical Dictionary (30th ed. 2003). Accordingly, the governing regulations do not provide a basis for awarding service connected compensation for the Veteran's dental disability. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150.

Regarding dental treatment, the Board finds that although some of the service treatment records are unavailable, including any records of dental treatment from NSA Bahrain, the records do show an initial incidence of severe dental pain in the area of the Veteran's pre-existing dental bridge during service. Also, the Veteran is competent to testify regarding his experience of dental trauma in service and receipt of subsequent apicoectomy. Additionally, this testimony was corroborated by the testimony of the Veteran's fellow service member and is also consistent with the Veteran's receipt of subsequent apicoectomies involving tooth number 6 soon after service. Accordingly, given the totality of the evidence, the Board finds the Veteran's testimony concerning dental trauma credible. Accordingly, affording the Veteran the benefit of the doubt, the Board finds that the Veteran did experience dental trauma to tooth number six in service. See Note, 38 C.F.R. § 4.150, Diagnostic Code 9913.

Additionally, as noted above, the disability of tooth 6 experienced by the Veteran is essentially analogous to a dental abscess. Accordingly, it generally qualifies for service connection for receipt of dental treatment as a service connected non-compensable dental disability. 38 C.F.R. §§ 3.381, 17.161. Thus as the disability has been established as resulting from the dental trauma of the fall in service, the evidence reasonably establishes that the Veteran qualifies for Class IIa VA dental treatment (i.e. any treatment indicated as reasonably necessary for the correction of this dental disability). 38 C.F.R. § 17.161. To the extent other teeth are medically indicated as needed to assist in treatment of tooth 6, they should be considered part of the treatment.

The Board notes that during the May 2004 VA dental consultation, the Veteran was noted to have reported that he lost tooth #7 in service. However, in the Veteran's reports made in conjunction with his claim for service connection, to include his sworn hearing testimony, he has made no mention of losing tooth #7 either during the fall in service or during the subsequent dental treatment received at NSA Bahrain. Instead, he has simply asserted that he received an apicoectomy in service, involving one tooth hooked to his existing bridge, which was later identified as tooth 6. Thus, the Board credits the Veteran's hearing testimony and other statements made in conjunction with his claim, rather than the single statement made to the May 2004 VA examiner. Accordingly, the weight of the evidence is against a finding that tooth #7 was lost as a result of the Veteran's April 2002 injury during service. The Board also notes that there is no basis in the record for the Veteran to qualify for VA dental treatment under any of the other applicable provisions. 38 C.F.R. § 17.161. If, as noted above, there is a need to involve other teeth in successfully treating tooth #6, this grant should be taken to allow such treatment.

In summary, as the Veteran is shown to have a dental disability of tooth number 6 analogous to a dental abscess, he does not qualify for service-connected compensation for this disability. However, as this non-compensable dental disability is reasonably shown to have been caused by dental trauma in service, the Veteran does qualify for Class IIA dental treatment for tooth number 6 (and other teeth as needed for successful treatment for tooth # 6.

ORDER

Service connection for a dental disability for VA compensation purposes is denied.

Service connection for a dental disability to tooth number 6 (and associated teeth as needed) for VA treatment purposes is granted.

____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs