Citation Nr: 0004904 Decision Date: 02/25/00 Archive Date: 03/07/00 DOCKET NO. 97-24 152 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for dental trauma. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M.G. Mazzucchelli, Counsel INTRODUCTION The veteran served on active duty from May 1969 to March 1971. This appeal arises from a February 1998 rating decision of the Department of Veterans Affairs (VA), Reno, Nevada, regional office (RO). In November 1999, the Board of Veterans' Appeals (Board) remanded the case for the RO to provide the veteran with the laws and regulations pertaining to reopening a previously denied claim. This was accomplished in December 1999. FINDINGS OF FACT 1 The Portland, Oregon, regional office (PRO), by rating decision dated in March 1995, denied service connection for dental trauma; the veteran did not file a timely appeal following appropriate notice, and that decision became final. 2. The evidence added to the record since the PRO's decision of March 1995 is either cumulative in nature or not material in that it does not indicate that the veteran suffered dental trauma during service; the evidence received since March 1995 is not so significant that it must be considered in order to properly decide the merits of the veteran's claim. CONCLUSION OF LAW The PRO's denial of service connection for dental trauma in March 1995 is final; new and material evidence has not been submitted, and the veteran's claim for that benefit has not been reopened. 38 U.S.C.A. §§ 1110, 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Portland, Oregon, regional office (PRO) denied service connection for dental trauma in March 1995. The veteran was informed of that decision and he did not file a timely appeal. To reopen the claim, the veteran must submit new and material evidence. 38 U.S.C.A. §§ 5108, 7104(b) (West 1991). New and material evidence means evidence not previously submitted which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (1998); See Hodge v. West, 155 F.3rd 1356 (Fed. Cir. 1998). For service connection to be granted, the law requires that there be a disability and that the disability result from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). VA laws applicable to service connection for dental disorders have been recently revised. These changes became effective June 8, 1999. 64 Fed.Reg. 30392 (June 8, 1999). The Court has held that where 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 regulation 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 (deleted as of June 8, 1999). Disease or injury of individual teeth and investing tissues were service connected when shown by the evidence to have been incurred in or aggravated by service and, as to each noncompensable service-connected dental condition, a determination was to be made as to whether it was due to a combat wound or other service trauma. 38 U.S.C.A. § 1712 (West 1991 & Supp. 1999); 38 C.F.R. § 3.381 (effective prior to June 8, 1999). The determination of a dental disorder due to in-service trauma is significant in that VA dental care may be authorized for any indicated treatment reasonably necessary for the correction of such service-connected noncompensable condition or disability. 38 C.F.R. § 17.161(c) (1999). For the purposes of determining 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. Under the 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, and rating action 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. See 38 U.S.C.A. § 1712 (West 1991 & Supp. 1999); 38 C.F.R. § 3.381 (1999). Teeth noted as normal at entry will be service-connected if they were filled or extracted after 180 days or more of active service. Third molars will not be considered service connected for treatment purposes unless disease or pathology of the tooth developed after 180 days or more of active service or was due to combat or inservice trauma. Id. VA outpatient dental treatment based on tooth extraction during active service is subject to eligibility determination under the provisions of 38 U.S.C.A. § 1712 and 38 C.F.R. § 17.161. Class II dental treatment is provided for noncompensable service-connected dental conditions, but restrictions include one-time treatment and timely application after service. Class II(a) dental treatment is provided, without restrictions as to the number of treatment episodes or timely application, for a service-connected noncompensable dental condition due to a combat wound or other service trauma. Initially, although the RO did not consider the change in regulation, the Board concludes that this is not prejudicial as the change in regulation has no effect on the outcome of the veteran's claim. See Edenfield v. Brown, 8 Vet. App. 384 (1995). The Board finds that, as the outcome would be the same under either the old or new versions of the applicable regulations, this decision is not prejudicial to the veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). When the claim was denied in March 1995, the evidence of record showed that during service the veteran sustained shrapnel wounds to the head and chin in May 1970, but that no teeth had been injured during service. The service separation examination in January 1971 did not indicate any dental trauma. Dental records show that on January 15, 1971, teeth numbers 16 and 17 were extracted. On a VA examination in August 1971, the veteran complained of "broken teeth;" however, there were no objective findings to indicate any dental trauma. A VA examination dated in January 1995 noted the veteran's history of the shattering of several teeth in the landmine explosion in 1970. It was noted that the veteran reported that these teeth had been repaired shortly after the injury. The March 1995 rating decision noted that the service medical records did not support the veteran's reported history of dental trauma during service, and the veteran was provided a copy of the rating decision. To be new and material, the evidence would have to objectively show that the veteran suffered dental trauma during service. Relevant, non-duplicative evidence received since the PRO's March 1995 rating decision includes a VA dental examination report dated in April 1997 showing teeth tender from grinding, and periodontal ligament space traumatized around the teeth. An August 1998 VA dental examination report is also of record. The examiner reviewed the entire record, including the veteran's service dental records, and noted that the four third permanent molars (teeth 1, 16, 17, and 32) had been removed during service, without any indication of dental trauma, that occlusal adjustment to tooth 18 (presumably to adjust the bite) had been done in July 1970, and that the remaining teeth were in excellent repair, with good occlusal relationships and no acute dental caries or abscesses present. The medical evidence submitted since the March 1995 rating decision does not demonstrate any objective evidence of inservice dental trauma. The veteran has submitted his own hearing testimony and written statements to the effect that the land mine explosion during service injured one or more teeth. Because the veteran claims that he incurred dental trauma during a combat situation, consideration is given to the provisions of 38 U.S.C.A. § 1154(b) (West 1999). However, these contentions were considered by the rating board in its 1995 denial which found that they were not supported by the objective evidence of record, which showed no dental trauma during service. Hence, such contentions are not new. While the veteran has submitted various items of evidence since the March 1995 rating decision, not every piece of evidence, even if relevant and probative, will justify the reopening of a case based on new and material evidence. The evidence submitted must be so significant that it must be considered in order to fairly decide the merits of the claim. Such evidence has not been submitted in this case; the evidence received since March 1995 does not objectively indicate that the veteran sustained dental trauma during his period of service. Where new and material evidence has not been submitted, VA does not have a statutory duty to assist a claimant in developing facts pertinent to the claim, but VA may be obligated under 38 U.S.C.A. § 5103(a) 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. Graves v. Brown, 8 Vet. App. 522 (1996). The Board finds that the RO fulfilled its obligation to the veteran by informing him that the current evidence does not objectively show that he sustained dental trauma during service. ORDER New and material evidence not having been submitted to reopen the claim for service connection for dental trauma, that benefit is denied. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals