Veteranclaims’s Blog

September 15, 2011

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

Filed under: Uncategorized — Tags: , , — veteranclaims @ 2:40 pm

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).”
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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
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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)
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