Single Judge Application, Service Trauma, Nielson v. Shinseki, 607 f.3d 802 (Fed.Cir 2010)

Excerpt from decision below: "It is now settled that "service trauma means an injury or wound produced by an external force during the service member's performance of military duties." Nielson v. Shinseki, 607 F.3d 802, 808 (Fed. Cir. 2010)." =========================================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-0373 ROBERT VAUGHN, APPELLANT, v. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before DAVIS, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. DAVIS, Judge: U.S. Army veteran Robert Vaughn appeals through counsel from a January 11, 2010, Board of Veterans'Appeals (Board) decisionthatdeniedserviceconnection fora headache disorder, to include migraines, and for dental trauma to teeth 5 to11 for purposes of eligibility for VA dental treatment. For the following reasons, the Court will affirm the Board's January 2010 decision. The appellant served on active duty from April 9, 1968, to April 10, 1970. The reports from the induction and separation examinations are mixed together out of sequence in the record and the notations therein are quite cryptic, preventing verification of the dates of treatment for each of the teeth at issue in this case. It is clear, however, that during service the appellant was provided a bridge from tooth 5 to tooth ll. In the course of preparing for the installation of this bridge, tooth 7, which was malaligned, was removed in December 1969 to facilitate the effectiveness of the bridge.1 The records state: "Pt [patient] acceptance very good" (Record (R.) at 545 ), and the bridge was cemented into place. The appellant now complains that the bridge is broken and that the anchor The separation examination nevertheless contains a notation designating tooth 7 as "restorable," the meaning of which is not at all evident to the Court. See R. at. 540 1 teeth (5 and 11), which were filed down to accommodate installation of the bridge, are now deteriorating. He seeks dental treatment benefits to address this condition. The appellant advances several arguments for the Court's consideration. He argues that the Board's statement of reasons or bases is inadequate for failure to discuss the extraction of teeth 7 and 19, which were extracted after a sufficient time in service such that theymight be eligible for service connection. See 38 C.F.R. § 3.381 (2011). He further asserts that the regional office (RO) premised its decision on factually erroneous information as to when these teeth were extracted and the Board did not explain why these extractions did not meet the requirements for service connection under 38 U.S.C. § 1712. He asserts that the VA notice letters on which the Board relied failed to satisfy the requirements of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, § 3(a), 114 Stat. 2096 (codified in part at 38 U.S.C. § 5103(a)). Specifically, he urges that the notice letters were deficient because they never advised him that he must submit evidence of service trauma. He argues that VA failed in its duty to assist by failure to obtain medical records pertaining to his postservice dental treatment and by failing to provide a medical examination. Additionally, he argues for the first time on appeal that the Board erred byfailing to consider a claim for headaches as secondary to his dental condition. I. ANALYSIS Congresshaschosento limit theextent to which dentalconditions maybeserviceconnected. See 38 U.S.C. § 1712. Compensable disability ratings are available only for service-related loss of basic bone structure in the jaws or hard palate.2 See 38 C.F.R. § 4.150 (2011). Other dental conditions maybeserviceconnectedsolelyforpurposes of treatment if certain requirements aremet. Some conditions treated in service will be eligible for VA treatment, but only if the conditions existed at discharge and an application for treatment is submitted within 180 days of discharge. See 38 U.S.C. § 1712(a)(1)(B)(i), (iii); 38 C.F.R. § 17.161(b) (2011). Among the other conditions eligible for postservice treatment are those "due to combat wounds or other service trauma." The Board noted that the RO considered and rejected a claim for a compensable dental condition in a February 2009 rating decision. See R. at 47. The Board stated: "The veteran has not disagreed with that decision, and no claim regarding compensation for a dental disorder is before the Board." R. at 4. 2 2 38 U.S.C. § 1712(a)(1)(C). A. Reasons or Bases Argument The appellant argues first that the Board did not sufficiently discuss the extraction of teeth 7 and 19, both of which were extracted more than 180 days after induction. See 38 C.F.R. § 3.381(d)(1). This argument reveals that the appellant may not have fully grasped the interrelationship of the regulations implementing 38 U.S.C. § 1712. A noncompensable dental condition maybeserviceconnectedyetstill ineligibleforpostservicedentaltreatment. Seegenerally 38 C.F.R. § 17.161. Postservice treatment of dental conditions treated in service is generally available only when an application for benefits is made within six months after discharge. The appellant points to no evidence that he ever submitted such a postservice application and the Court's review of the record reveals none. He sought service connection only in 2006. WhiletheBoarddid not maketheforegoingexplanation, theappellanthasnot explained how such a discussion might affect the outcome in his case. See Soyini v. Derwinski, 1 Vet.App. 540 (1991) (Court will not require strict adherence to reasons-or-bases requirement when it results in additional burdens on the Board and VA with no possible benefit flowing to the veteran). The Board focused on the onlystatutoryand regulatoryprovisions under which the appellant might have been eligible for the sought-after postservice treatment. A noncompensable service- connected dental condition will be eligible for postservice VA treatment if it is "due to combat wounds or other service trauma." 38 U.S.C. § 1712(a)(1)(C); 38 C.F.R. §§ 3.381(b), 17.161(c). It is now settled that "service trauma means an injury or wound produced by an external force during the service member's performance of military duties." Nielson v. Shinseki, 607 F.3d 802, 808 (Fed. Cir. 2010). Furthermore,"[t]his definition excludes the intended result of proper medical treatment." Id. In the decision here on appeal the Board found that "[s]ervice dental records establish that the Veteran did not incur trauma to [teeth 5 to 11], and that a bridge from tooth #5 to tooth #11 was provided because the Veteran's crossbite could not otherwise be corrected." R. at 4. The Board further concluded that "the Veteran was provided with a bridge in service, but [] the bridge was not required as the result of a combat Previous HitinjuryNext Document or trauma." R. at 15. The Court's review of the record reveals no indication of trauma to any of the teeth extracted and the appellant points to none. 3 B. VCAA Notice Issues The appellant argues that the VCAA notice letter was deficient because "[n] one of the VA letters sent to the veteran prior to the first denial of benefits . . . notified the veteran that the claim depended on whether the dental condition was due to service trauma." Appellant's Brief at iii. The Board relied on VA notice letters sent in March 2006 and July 2006. The former is a generic letter listing the requirements for a generic claim for disability benefits and the latter is missing from the record before the Court. This Court has indicated that VCAA notice mayneed to be tailored to the nature of the claim. See Kent v. Nicholson, 20 Vet.App. 1 (2006). The March 2006 notice letter does not address a claim for treatment benefits for a dental condition or the type of evidence that will support such a claim. Because the July 2006 letter is not available in the record for the Court's review, the Court will assume, for purposes of this analysis only, that the VCAA notice letters failed to properly advise the appellant as to the type of evidence required. The appellant argues that such an error would be a TypeIerror,whichwould be presumptivelyprejudicial. See Mayfieldv.Nicholson, 19Vet.App.103 (2005). The U.S. Supreme Court has warned, however, against "courts'determining whetheran error is harmless through the use of mandatory presumptions and rigid rules rather than case-specific application of judgment, based upon examination of the record." Shinseki v. Sanders, 129 S. Ct. 1696, 1704-05 (2009) (emphasis added); see also Mlechick v. Mansfield, 503 F.3d 1340, 1345 (Fed. Cir. 2007) (Court may"go outside of the facts as found by the Board to determine whether [a VCAA notice] error was prejudicial by reviewing 'the record of proceedings before the Secretary and the Board'"). The Court's review of the record in this case reveals no contention, much less any evidence, that the removal of the appellant's teeth and the installation of the bridge was due to service trauma as defined in Nielson, supra. The appellant does not so contend in his brief and identifies no evidence that the appellant might have submitted tending to show service trauma. More important, the evidence of record uniformly indicates that the removal of certain teeth in service was the intended result of proper dental treatment, which negates the existence of service trauma as a matter of law. Therefore, the Court concludes that any VCAA notice error in failing to advise of the 4 necessity of evidence of service trauma did not prejudice the appellant. In the clear absence of service trauma there was no legal basis upon which benefits could be awarded. See Mlechick, 503 F.3d at 1345 (no prejudice where benefit could not have been awarded as a matter of law). The record rebuts any presumption that may yet arise under Mayfield. C. Duty To Assist The appellant further argues that VA failed to comply with its duty to assist because it did not obtain postservice treatment records. The duty to assist pertains to relevant records adequately identified. See 38 U.S.C. § 5103A(b). The Board concluded that "for purposes of determining the Veteran's eligibility status for outpatient dental treatment, the post- service dental records are not relevant, as the governing regulations assign dental status based only on the conditions and circumstances of the Veteran's service, such as whether he sustained combat injuryor trauma or was a prisoner of war (POW)." R. at 9. Further, the Board noted that "neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of any claim at issue that has not been obtained." Id. The appellant asserts that "[t]he [postservice] records might have supported the position that the Veteran's dental condition was due to trauma in service." Appellant's Brief at 18. He does not venture any explanation, however, as to how such records could have supported service trauma. It is not at all clear that the treatment reports of dentists years after service could suggest that the absence of the teeth replaced by the bridge is due to in-service trauma. In any event, the appellant has not established that the postservice dental records were either relevant or identified. Therefore, the Court will affirm the Board's denial of entitlement to VA dental treatment for the dental condition associated with the bridge. Simply put, the appellant has offered no evidence that he meets the stringent requirements set by Congress for such benefits. D. Headaches The appellant does not assert any argument that the Board erred in denying service connection for his headaches on a direct basis. Therefore, the Court deems any issue with respect to that determination to be abandoned. See Cromer v. Nicholson, 19 Vet.App. 215, 217 (2005). He does argue, however, that the Board erred in not consideringhis headaches as a secondary effect of his dental condition. Setting aside the fact that the appellant's dental condition is not 5 currently service connected, the record does not reveal that the appellant ever argued for headaches as secondary to his dental condition before the Board. Moreover, the record evidence cited does not raise that possibility. The Court is therefore unable to conclude that the Board erred in failing to discuss such a secondary claim. II. CONCLUSION On consideration of the foregoing, the Court AFFIRMS the Board's January 11, 2010, determination that the appellant is not entitled to VA treatment for his dental condition. DATED: September 13, 2011 Copies to: Kenneth L. LaVan, Esq. VA General Counsel (027) 6