Citation Nr: 0007029 Decision Date: 03/15/00 Archive Date: 03/23/00 DOCKET NO. 97-13 550A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a dental disorder, to include dental surgery and bridge work, for purposes of Department of Veterans Affairs compensation or for the purpose of obtaining outpatient dental treatment. ATTORNEY FOR THE BOARD L. Helinski, Counsel INTRODUCTION The veteran had periods of active service from June 1972 to February 1976, from April 1978 to October 1986, and from December 1988 to August 1996. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a December 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the benefit sought on appeal. As a preliminary matter, the Board notes that, in a substantive appeal (VA Form 9) received at the RO in May 1997, the veteran requested a hearing before the Board. However, in April 1998, he informed a VA veterans' benefits counselor that he did not want a hearing before the Board, but instead wanted a hearing before a hearing officer at the RO. The record reveals that a hearing before a hearing officer was scheduled for August 1998. The veteran requested a rescheduling of that hearing. By VA letter dated in January 1999, the veteran was notified that a hearing was scheduled for February 1999. That letter was sent to the veteran's latest address of record, and was not returned as undeliverable. However, the veteran failed to report. There are no other outstanding hearing requests of record, and the Board will therefore proceed to decide this appeal. FINDINGS OF FACT There is no medical or dental evidence that the veteran incurred any dental disorder during active military service for which composition may be granted or for which continuing dental treatment is allowable. CONCLUSION OF LAW The claim of entitlement to service connection for a dental disorder, either for purposes of compensation or for purposes of VA outpatient dental treatment, is not well-grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran contends that he is entitled to service connection, to a compensable evaluation, and to continuing dental treatment, for a dental disorder, to include dental surgery and "bridge work." Service connection will be granted for a disease or injury of the individual teeth and investing tissues, shown by the evidence to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1712. Very severe dental disabilities, such as loss in whole or in part of a bone structure in the mouth (see 38 C.F.R. § 4.150), are compensable. Veterans are entitled to continuing dental treatment of such compensable dental disorders at VA expense. Service connection may also be granted for dental disorders defined as non-disabling (i.e., noncompensable), but if a dental disorder is not compensable, service connection may be granted only for purposes of eligibility for continuing dental treatment. 38 C.F.R. § 3.381 (1999). As to each noncompensable service-connected dental condition, a determination will be made as to whether it is due to a combat wound or other service trauma. 38 C.F.R. § 3.381(b). The significance of a finding that a dental condition is due to in-service trauma is that the veteran may be authorized to receive any VA dental care indicated as reasonably necessary for the correction of such noncompensable condition or disability. 38 C.F.R. § 17.161(c) (formerly § 17.123(c), commonly referred to as Class II(a) eligibility). For the purposes of determining whether a veteran has Class II(a) eligibility for dental care under 38 C.F.R. § 17.161(c), the term "service trauma" does not include the intended effects of treatment provided during the veteran's military service, including tooth extraction. See VAOPGCPREC 5-97 (1997). In addition to authorizing dental treatment for compensable service-connected dental disorders, including dental disorders due to service trauma, 38 U.S.C.A. § 1712 and 38 C.F.R. § 17.161 authorize service connection and continuing dental treatment for dental disorders aggravating service- connected disabilities, dental disorders of former prisoners of war, and in other circumstances not relevant to this case. Where one of these factors, such as a dental disorder due to dental trauma, is present, the veteran will be eligible for VA dental treatment, even for a noncompensable dental condition, without the usual restrictions of timely application and one- time treatment. 38 C.F.R. § 17.161(c). Additionally, the Board notes that a veteran discharged from service after 1981 is entitled to one-time correction of a noncompensable service-connected dental disorder if that benefit was sought within 90 days after the veteran's discharge and was not provided all dental work necessary during service in the 90 days preceding discharge. 38 C.F.R. § 17.161(b). It is not clear from the record whether the veteran sought one-time treatment following service, or has been afforded such treatment. In any event, the veteran has not discussed one-time treatment in his claim or in his appeal. Accordingly, that issue is not before the Board, and the Board's decision does not address that benefit. Initially, the Board notes during the pendency of this appeal, VA regulations regarding service connection for dental disorders were revised, effective June 8, 1999. 64 Fed. Reg. 30,392 (June 8, 1999). The United States Court of Appeals for Veterans Claims (Court) has held that, when a law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version more favorable to the veteran will apply. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). Previously, VA regulations provided that treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, periodontal disease (pyorrhea), and Vincent's stomatitis were not disabling conditions, and could be considered service-connected solely for the purpose of determining entitlement to dental examination or outpatient dental treatment. 38 C.F.R. § 4.149 (in effect prior to June 8, 1999). Under amended VA regulations, 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, as provided in 38 C.F.R. § 17.161. Rating activity should consider each defective or missing tooth and each disease of the teeth and periodontal tissues separately to determine whether the condition was incurred or aggravated in line of duty during active service and, when applicable, to determine whether the condition is due to combat or other in-service trauma, or whether the veteran was interned as a prisoner of war. 38 C.F.R. § 3.381 (effective after June 8, 1999); see 38 U.S.C.A. § 1712 (West 1991 & Supp. 1999). In the present case, on the veteran's original claim, received in September 1996, he claimed that he underwent dental surgery in December 1979 and August 1983, as well as crown bridgework in November 1984. In his substantive appeal, received in May 1997, he contended that he currently has a dental disorder as a result of his active duty service. He also contended that a July 1996 health record from the Wright-Patterson Air Force Base shows that a decision was made to deny further dental work. He also maintains that his military records reflect that he had a chronic dental disorder. The Board has thoroughly reviewed all the service medical records of record and finds that, although they reflect that the veteran received treatment for carious and decayed teeth, including crowns, and reflect that certain missing teeth were replaced with dental bridges, the service medical and dental records are negative for any evidence of service trauma leading to a dental condition. Following service separation, in October 1996, the veteran underwent a VA dental examination. The examiner noted that the veteran's maximum opening distance was well within normal limits. The veteran had no complaints of pain or any acute symptoms. The veteran also did not have any lesions, swelling, or infections. His oral hygiene was good. A panarex x-ray was taken, which was within normal limits. The veteran had five teeth with root canals, and his four third molars were missing and not impacted. The examiner noted that the veteran's bridge on the lower left side from teeth numbers 18 to 20 may have an open margin on the distal of number 20 and may need to be replaced. However, the examiner opined that the veteran was "not really suffering from any disabilities at all." He further stated that there were "no ancillary problems as a result of [the veteran's] dental condition, other than he would like to have some routine dental treatment completed." Private dental statements from two dentists reflect July 1996 estimated charges for dental work required at that time, including proposed dental treatment consisting of crowns, fillings, an extraction, and bridgework. The veteran's dental records also reflect that the veteran was given instructions for how to arrange for private dental prosthetic treatment which could not be obtained at the available service facility. The records do not include an administrative decision on the veteran's request for such treatment. As the RO noted in its August 1999 supplemental statement of the case (SSOC), certain claims for dental treatment are under the jurisdiction of the VA medical facility where the veteran resides. As the RO noted in that at SSOC, and the preceding statement of the case reflect, however, determinations of service connection for a dental disorder, whether for purposes of compensation or for purposes of dental eligibility, must be made by the RO. In this case, the RO has determined that the veteran has not submitted a well-grounded claim of entitlement to service connection for a dental disorder. That determination, under the applicable regulations, governs both claims for purposes of compensation and claims for purposes of eligibility to dental treatment. The Board emphasizes that both the old and new regulations clearly provide that conditions such as treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not disabling conditions subject to compensation under VA laws, and may be considered service-connected solely for the purpose of determining entitlement to dental examinations or outpatient dental treatment. See 38 C.F.R. § 3.381(a) (1999) and 38 C.F.R. § 4.149 (in effect prior to June 8, 1999). Although the veteran is claiming entitlement to service connection for a dental disorder so that he may receive compensation and to establish eligibility for VA dental treatment, there is no current diagnosis of a compensable dental disorder, nor of any service-connected but non- compensable dental disorder for which dental treatment may be authorized. In particular, there is no evidence that the veteran incurred the need for dental surgery or crowns or "bridge work" as a result of combat, service trauma, or any other incident of service giving rise to entitlement to continuing dental treatment. Under the regulations in effect when the veteran submitted his claim, loss of teeth in service, if the teeth are replaceable, is not a disorder for which service connection may be granted. The revised regulations reflect that, even of the loss of a tooth occurs after 180 days in service, and thus may be considered service-connected, that service connection is for purposes of establishing entitlement to dental treatment only. However, loss of a tooth which is replaceable remains noncompensable under the revised regulations, and does not meet any of the criteria for eligibility for outpatient dental treatment. Even if the Board were to grant service connection for each tooth extracted more than 180 days after the veteran entered service, under 38 C.F.R. § 3.381(d), the veteran would not have a well-grounded claim for service connection for either compensation or dental treatment eligibility purposes. In particular, there is no medical or dental evidence that the veteran has loss of substance of the mandible or maxilla, or loss of continuity of the masticatory surface, so as to constitute a compensable dental disorder. 38 C.F.R. § 3.150. Without such evidence, the veteran has not submitted a well- grounded claim for service connection for compensation purposes. With regard to the claim of service connection for purposes of dental treatment eligibility, the Court has held that in order to be entitled to outpatient dental treatment, a veteran must first meet the criteria specified in one of the clauses of 38 U.S.C.A. § 1712(b)(1)(A)-(H). See 38 C.F.R. § 17.161; Woodson v. Brown, 8 Vet. App. 352 (1995), aff'd 87 F.3d 1304 (Fed. Cir. 1996). Furthermore, the Court has indicated that, if the evidence is insufficient to establish that the veteran is a member of one of the "classes" of eligibility for dental treatment, then the veteran has not submitted a well-grounded or "plausible" claim for entitlement to outpatient dental services, and the appeal must be denied. Woodson, 8 Vet. App. at 355; see 38 U.S.C.A. § 1712(b)(1)(A)-(H); 38 C.F.R. § 17.161. The classes of eligibility for dental treatment are set forth in 38 C.F.R. § 17.161. See 38 U.S.C.A. § 1712. Only three of those Classes are potentially applicable in this case, which are analyzed below. With reference to Class I, those having a service-connected compensable dental disability or condition may be authorized dental treatment as necessary to maintain oral health and masticatory function. However, in the present case, the veteran has not alleged, nor does the evidence reflect otherwise, that he sustained an injury or disease in service resulting in disability subject to compensation. See 38 C.F.R. § 4.150 (1999); see also Woodson, 8 Vet. App. at 354. Specifically, the VA dental examination conducted in October 1996 reflects no evidence of a compensable dental disability or of combat or trauma dental disability. As the veteran has not established compensable service connection for a dental disorder, he has not presented a well-grounded claim for Class I eligibility. With reference to the Class II criteria, as noted above, a veteran who has a service-connected, noncompensable dental condition or disability shown to have been in existence at time of discharge or release from active service, may, under certain specified conditions, utilize outpatient dental services and treatment. Restrictions include one-time treatment and timely application after service, usually within 90 days. Additionally, the certificate of discharge or release must not certify that the veteran was provided a complete dental examination within 90 days prior to discharge or release and all appropriate dental treatment indicated by the examination. As noted above, the veteran has not alleged that he is claiming entitlment to one-time treatment, and this issue is not before the Board for appellate review. Finally, under Class II(a) criteria, dental treatment may be provided for a service-connected noncompensable dental condition which resulted from combat wounds or other service trauma. 38 C.F.R. § 17.161; see 38 U.S.C.A. § 1712(a)(1)(C). The veteran is not eligible under this category, because the evidence does not reflect, nor does the veteran contend, that he developed a dental disorder due to combat wounds or service trauma. To the extent that the veteran contends that his dental surgery or "bridge work" in service constituted dental trauma, the Board notes that the definition of "dental trauma" excludes routine dental treatment from the definition of dental trauma. See VAOPGCPREC 5-97 ("service trauma" does not include the intended effects of treatment provided during the veteran's military service). In sum, the veteran does not meet any of the criteria for eligibility for VA outpatient dental treatment, and his claim is not well grounded. See Woodson, supra. As the veteran's claim of entitlement to service connection for a dental disorder, either for compensation or for the purpose of VA outpatient dental treatment, is not well- grounded, his claim must be denied. 38 U.S.C.A. § 5107(a). ORDER A well-grounded claim not having been submitted, entitlement to service connection for a dental disorder, for the purpose of VA compensation or outpatient dental treatment, is denied. TREA M. SCHLECHT Acting Member, Board of Veterans' Appeals