Simington v. West

11 Vet. App. 41, 1998 U.S. Vet. App. LEXIS 53, 1998 WL 27545
CourtUnited States Court of Appeals for Veterans Claims
DecidedJanuary 26, 1998
DocketNo. 95-948
StatusPublished
Cited by8 cases

This text of 11 Vet. App. 41 (Simington v. West) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Simington v. West, 11 Vet. App. 41, 1998 U.S. Vet. App. LEXIS 53, 1998 WL 27545 (Cal. 1998).

Opinion

IVERS, Judge:

The appellant appeals from a June 16, 1995, Board of Veterans’ Appeals (BVA or Board) decision granting service connection for the veteran’s tooth number 24 by reason of dental trauma, for the purpose of receiving VA outpatient dental treatment. Service connection for other teeth based on claimed trauma was denied. For the reasons stated below, the Court will vacate and remand a portion of the BVA’s June 16, 1995, decision.

I. FACTS

The veteran served on active duty from March 1953 to March 1955 and from February 1 to May 1, 1991. Record (R.) at 4, 17, 19. The appellant’s separation examination in March 1955 noted that teeth numbers 17, 19, 29, 30, and 32 were missing. R. at 14.

An April 15, 1991, service medical record (SMR) shows that the appellant bumped his mouth and had a loose tooth. R. at 63. SMRs from April to May 1991 reveal that the appellant had severe longstanding periodontal disease. R. at 64-68. Periodontal disease is any of a group of pathological conditions that affect the surrounding and supporting tissues of the teeth. Dorland’s Illustrated Medioal Dictionary 487 (28th ed.1994). An April 22,1991, entry noted that conditions that existed prior to sei-vice included severe advanced periodontal disease relating to all remaining teeth. It was noted that initial treatment for periodontal disease would begin, including scaling, but that the appellant’s periodontal problems could not be treated within the time of eligibility. It was reiterated that the conditions had existed prior to service. R. at 65. A May 3, 1991, service department record entry listed teeth numbers 17, 23, 25, 26, and 28 as “periodon-tally hopeless.” Teeth numbers 7, 8, 9, and 10 were considered “periodontally involved” and “hopeless.” R. at 66. (The Court notes that there is a disci-epancy in the record regarding tooth number 17. See supra.)

In May 1991 the appellant filed an application for compensation or pension for, inter alia, a dental accident in April 1991. R. at 40. A May 21, 1991, letter from the Department of the Army, U.S. Army Dental Activity, Fitzsimons Army Medical Center (Fitzsimons), revealed that the appellant was currently under treatment for advanced periodontal disease. Treatment was necessary because of an infection that had resulted in the loss of one tooth. The letter explained that several other teeth required extraction, periodontal surgery was necessary, and a new denture was needed to “adequately control his disease.” R. at 21. A June 1991 sex-vice department record revealed that the appellant had teeth numbers 18, 23, 25, 26, and 29 extracted. R. at 64.

In July 1991 the appellant submitted a statement reporting that, on April 15, 1991, some of his teeth were loosened when, while walking down a hallway and eating an apple, he was hit by a door. R. at 72. He revealed that he was receiving dental care at Fitzsi-mons. He explained that he was “still unable to eat pi-operly or adequately to maintain good nutrition and eating habits due to the loss of teeth, peridontal [sic] surgeries and eating discomfort.” R. at 73. Attached was the April 15, 1991, SMR which indicated, “[B]umped mouth — has loose tooth — tooth came loose when eating an apple.” R. at 81; see also R. at 63.

In November 1991 the appellant submitted an application for medical benefits for dental treatment. R. at 76-77. In a May 1992 dental rating decision, no evidence of dental trauma was noted. It was also noted that the veteran had had preexisting advanced periodontal disease. R. at 92. The appellant submitted a Notice of Disagreement. R. at 94. A Statement of the Case (SOC) was issued. R. at 97-104. The appellant submitted an Appeal to the Board of Veterans’ Appeals. R. at 106-07.

On December 9, 1992, the appellant testified that, early in the morning of April 15, 1991, he saw a dentist about his loose tooth. The dentist indicated that he could detect [43]*43problems with some other teeth, but he was not a periodontist. At that time, a temporary prosthesis was mounted in his mouth. The appellant was told to see a periodontist as soon as possible. R. at 113. The appellant indicated that it was his belief that teeth numbers 23 and 25 were also injured in the accident. R. at 117. In March 1993 the hearing officer confirmed the decision denying entitlement to dental treatment based upon dental trauma. R. at 122-23. A Supplemental SOC was issued. R. at 125-28.

On June 16, 1995, the BVA rendered the decision currently on appeal. The Board granted service connection for missing tooth number 24, by reason of dental trauma, for the purpose of receiving VA outpatient dental treatment. Service connection was denied for other teeth based on claimed trauma. R. at 9.

On January 11,1996, the appellant submitted documents to the Court that had not been designated as part of the Record on Appeal (ROA). On March 25, 1996, the Secretary filed the ROA. On April 24,1996, the appellant filed his informal brief. On July 2, 1996, the Court’s Central Legal Staff conducted a telephonic conference pursuant to Rule 10 of this Court’s Rules of Practice and Procedure regarding the designation of the ROA, but the dispute was not resolved. In a September 6, 1996, order, the appellant was given an opportunity to submit evidence to corroborate his assertion that the disputed documents were previously proffered to the Secretary. On December 9, 1996, the appellant’s response was filed. In a December 17, 1996, order, the Court denied inclusion in the record of the documents counter designated by the appellant. On January 8, 1997, the Court received the Secretary’s response to the Court’s September 6,1996, order.

II. ANALYSIS

A. Counter Designation of the Record

Counter designation of the record (CDR) will be permitted where the record before the Court reflects that, in proceedings below, the appellant submitted to VA and VA accepted documents for incorporation into the veteran’s claims file. The Court holds that in this case, there is no evidence in the ROA that any of the evidence in the appellant’s CDR was previously given to an employee of VA. There have been no affidavits or other evidence submitted, e.g., an original document with the date stamp showing VA receipt, a hearing transcript reference to the proffer or acceptance of the documents, a certified mail receipt, or any other information, that would corroborate that the documents were, at any time prior to the June 16, 1995, BVA decision, in the Secretary’s possession. Therefore, the Court has no alternative but to deny the appellant’s CDR.

B. Service Connection

Determinations regarding whether a particular disability was incurred in or aggravated by service and the degree of impairment for purposes of rating such a disability are findings of fact. Francisco v. Brown, 7 Vet.App. 55, 57-58 (1994); Stegman v. Derwinski, 3 Vet.App. 228, 229-30 (1992); Gilbert v. Derwinski, 1 Vet.App. 49, 52-53 (1990). Factual findings of the BVA will be overturned by this Court only if found to be “clearly erroneous.” 38 U.S.C. § 7261(a)(4); Francisco, 7 Vet.App. at 57; Gilbert, 1 Vet.App. at 52-53. Under this standard of review, “if there is a ‘plausible’ basis in the record for the factual determinations of the BVA, even if this Court might not have reached the same factual determinations, [the Court] cannot overturn them.” Id. at 53.

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Bluebook (online)
11 Vet. App. 41, 1998 U.S. Vet. App. LEXIS 53, 1998 WL 27545, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simington-v-west-cavc-1998.