Citation Nr: 0006315 Decision Date: 03/09/00 Archive Date: 03/17/00 DOCKET NO. 93-18 464 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Baton Rogue, Louisiana THE ISSUE Entitlement to Department of Veterans Affairs (VA) outpatient dental treatment on an adjunct basis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Jeffers, Associate Counsel INTRODUCTION The veteran served on active duty from October 1957 to September 1978. This case previously came to the Board of Veterans' Appeals (Board) on appeal from a March 1992 decision of the Baton Rogue, Louisiana, VA Medical Center (VAMC), which denied entitlement to the veteran's claim for VA outpatient treatment on an adjunct basis. In August 1993, the veteran presented testimony at a personal hearing held by a Member of the Board at the local VA Regional Office (VARO) in New Orleans, Louisiana. The Board subsequently remanded this case to the RO for additional evidentiary development in May 1994. During the pendency of the appeal, the Board Member who presided at the August 1993 hearing departed from the Board. As such, the veteran was notified in April 1998 that he could have another hearing on appeal before another Board Member, if he so desired. In May 1998, the veteran indicated that he wanted to have another hearing before a Member of the Board at the VARO. Accordingly, in June 1998, the Board once again remanded this case to the local VARO for purposes of scheduling the veteran for such a hearing. The veteran thereafter presented testimony at a personal hearing held by the undersigned Member of the Board at the local VARO in November 1999. A transcript of that hearing has been associated with the record on appeal. This case has been returned to the Board for appropriate disposition. FINDINGS OF FACT 1. Service connection is in effect for a gastrointestinal disorder manifested by peptic ulcer disease, gastritis and hiatal hernia. 2. A nexus between the veteran's nonservice-connected dental condition and service-connected gastrointestinal disorder is not currently established by competent medical evidence. 3. The veteran has not submitted evidence sufficient as to justify a belief by a fair and impartial individual that his claim for VA outpatient dental treatment on an adjunct basis is well grounded. CONCLUSION OF LAW The claim for entitlement to VA outpatient dental treatment on an adjunct basis is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background A review of the record included the veteran's service medical record which shows that he was missing tooth number 1 on examination for purposes of commission as a ROTC Cadet in September 1956. On examination for purposes of admission to active military duty in October 1957, he was also noted to be missing teeth numbers 16, 17 and 32. Although the veteran was seen on occasion at the Dental Service, there was no mention of the incurrence of any dental trauma during his military service. The veteran retired from military service in September 1978. Following discharge, the veteran filed claims for service connection for multiple disabilities. By rating decision issued in February 1979, the veteran was granted service connection and assigned a 10 percent disability rating for a gastrointestinal disorder manifested by peptic ulcer, gastritis and hiatal hernia. A review of the veteran's VA treatment file indicates that he received outpatient and fee basis dental treatment on occasion between 1979 and 1986. The veteran's eligibility for this treatment was apparently predicated on a medical determination that dental treatment was considered a necessary adjunct to his service-connected peptic ulcer with gastritis and hiatal hernia. The veteran apparently reapplied for adjunct dental treatment in March 1992. Later that month, the Baton Rogue VAMC denied the veteran's request, noting that he did not apply for outpatient dental treatment within 90 days after discharge or release from active duty and it was the professional decision of its Chief Medical Officer that dental treatment is not adjunct in treatment of his service-connected condition. In August 1993, the veteran testified at a hearing held by a former Member of the Board. At that time, the veteran noted that he had previously received adjunct therapy for his teeth throughout the 1980's. He stated that he decided to save going to the Baton Rogue VAMC in 1989, because his employer had reasonable private health care and dental coverage and the VA facility was some 70 miles one-way from where he lived. The veteran maintained that he continued to get prescriptions from his private doctor for treatment of his service-connected digestive disorder and had them filled at Fort Polk, Louisiana. The Board remanded this matter to RO in May 1994 for additional evidentiary development and to obtain a medical opinion as to the affect of any dental pathology on the veteran's service-connected gastrointestinal disorders. Records obtained from Gordy Landry, Jr., DDS, showed dental treatment on occasion between 1978 and 1993. Treatment records obtained from Corbett J. LeBouef, M.D., reflect that the veteran was prescribed Tagamet 400 on occasion between 1990 and 1994. A September 1994 statement reflects that the veteran was seen on occasion at the office of David. G. Trahan, DDS, between March 1993 and July 1994. The veteran was afforded VA dental and gastrointestinal evaluations in May and June of 1995. The dental examination report reflects diagnoses of moderate to advanced periodontitis with the most advanced being in the maxillary posterior area and lower anterior region, and endodontic infection around the apices of #5 with an active fistula. The gastrointestinal examination shows a diagnosis of gastroesophageal reflux disease. However, the examiner failed to comment as to the affect of the veteran's dental pathology on his service-connected digestive disorders. As such, the examination was deemed to be insufficient for compensation and pension purposes. The veteran was thereafter afforded VA dental and fee basis gastrointestinal evaluations in November and December of 1995. On this occasion, the dental examination report showed diagnoses of chronic periodontitis, gingival recession and radicular abrasion of some teeth. Although the VA fee basis examiner provided a medical statement, it is noted that the opinion involved the very rare probability of a gastrointestinal disease causing deterioration of the teeth. Once again, the findings were deemed to be inadequate for rating purposes insofar as the doctor gave an opinion as to the probability of a gastrointestinal disorder affecting teeth rather than the requested as to the affect of the veteran's dental pathology on his service-connected disorders. The veteran was again afforded VA dental and gastrointestinal evaluations. The November 1996 dental examination report showed diagnoses of apical pathology at tooth number 5, generalized periodinitis with localized advanced periodinitis, and Mobility Class-II variety at teeth numbers 4 and 5. The November 1996 gastrointestinal examination report showed diagnoses of esophageal reflux, gastritis and duodenal ulcer deformity. In August 1997, both VA examiners issued addenda indicating that the veteran's dental disease does not cause or affect his gastrointestinal disorders. The veteran thereafter presented testimony at a personal hearing held by the undersigned, a Member of the Board, at the local VARO in November 1999. He again noted that he had previously received adjunct therapy for his teeth throughout the 1980's. He stated that he decided to save going to the Baton Rogue VAMC in 1989, because his employer had reasonable private health care and dental coverage and the VA facility was some 70 miles one-way from where he lived. The veteran maintained that he continued the get prescriptions from his private doctor for treatment of his service-connected digestive disorder and had them filled at the commissary at Fort Polk, Louisiana. Nonetheless, the Chief Medical Officer at the Baton Rouge VAMC continues to deny his claim. Analysis VA outpatient dental treatment may be authorized to the extent prescribed and in accordance with the applicable classification and provisions set forth in 38 C.F.R. § 17.161 (1999). However, the threshold question to be answered in this case is whether the appellant has presented evidence of a well grounded claim; that is, a claim which is plausible. If he has not presented a well grounded claim, his appeal must fail and there is no duty to assist him further in the development of his claim because such additional development would be futile. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78 (1990). Although his claim need not be conclusive to be well-grounded, it must be accompanied by supporting evidence that justifies a belief by a fair and impartial individual that such a claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992); Dixon v. Derwinski, 3 Vet. App. 261, 262 (1992). In order to establish a well grounded claim for VA outpatient denial treatment, a veteran must meet the criteria specified in one of the clauses of 38 U.S.C.A. § 1712(b)(1)(A)-(H) (West 1991 & Supp. 1991). Woodson v. Brown, 8 Vet. App. 352, 354 (1995). As to Class I outpatient dental treatment by VA, the Board initially observes that, pursuant to 38 U.S.C.A. § 1712 (West 1991 & Supp. 1999) and 38 C.F.R. § 17.161(a) (1999), entitlement to such treatment is only available to a veteran having a service-connected compensable dental disability. Further, the veteran did not timely file a claim for dental treatment within 90 days of military discharge, entitlement to Class II outpatient dental treatment by VA is similarly not in order. See 38 C.F.R. § 17.161(b) (1999). In addition, the veteran neither contends, nor does the evidence reflect, that he has any dental disability or the loss of any tooth due to service-incurred trauma; he is therefore ineligible for Class II(a) outpatient dental treatment by VA. See 38 C.F.R. § 17.161(c) (1999). The veteran has primarily contended that he is entitled to Class III outpatient dental treatment, which is authorized for those having a dental condition professionally determined to be aggravating disability from an associated service- connected condition or disability. 38 C.F.R. § 17.161(g) (1999). That means that for a well grounded claim for Class III benefits, there must be a current dental condition, a service-connected condition or disability, and a professional determination establishing a pathological relationship between them. While the Board recognizes that the veteran received Class III VA outpatient dental treatment in the 1980's, it is noted that the current medical evidence of record does not support the necessity of dental care in the treatment of gastrointestinal disorders. The veteran is not shown to be qualified to render a medical diagnosis or opinion. Hence, his views as to the entitlement to Class III dental treatment are specifically outweighed by the medical evidence of record cited above. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) (lay assertions will not support a finding on questions requiring medical expertise or knowledge). Under these circumstances, the Board concludes that the veteran has not met the initial burden of presenting evidence of a well grounded claim for VA outpatient dental treatment on an adjunct basis, as imposed by 38 U.S.C.A. § 5107(a) (West 1991). The claim, therefore, must be denied. Since the veteran has failed to present a well grounded claim, VA has no duty to assist him in the development of facts pertaining to the claim. Where a claim is not well grounded, VA does not have a statutory duty to assist a claimant in developing facts pertinent to his claim, but VA may be obligated under 38 U.S.C.A. § 5103(a) (West 1991) to advise a claimant of evidence needed to complete his application. This obligation depends on the particular facts of the case and the extent to which the Secretary has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69, 78 (1995). Here, unlike the situation in Robinette, the veteran has not put the VA on notice of the existence of any specific, particular piece of evidence that, if submitted, could make his claim well grounded. See also Epps v. Brown, 9 Vet. App. 341 (1996). Accordingly, the Board concludes that VA did not fail to meet its obligations under 38 U.S.C.A. § 5103(a) (West 1991). ORDER Entitlement to VA outpatient dental treatment on an adjunct basis is denied as not well grounded. A. BYRANT Member, Board of Veterans' Appeals