Regis J. Byrd v. R. James Nicholson

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 04-1384

REGIS J. BYRD , APPELLANT ,

V.

R. JAMES NICHOLSON ,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided December 23, 2005 )

Mark R. Lippman, of La Jolla, California, was on the pleading for the appellant.

Tim McClain, General Counsel; R. Randall Campbell, Assistant General Counsel; Joan E.

Moriarty, Deputy Assistant General Counsel; and David L. Quinn, all of Washington, D.C., were

on the pleading for the appellee.

Before GREENE, Chief Judge, and KASOLD and MOORMAN, Judges.

MOORMAN, Judge: The appellant, veteran Regis J. Byrd, appeals, through counsel, a

July 21, 2004, decision of the Board of Veterans' Appeals (Board) that denied VA disability

compensation for gum disease. She argues that VA regulation 38 C.F.R. § 3.381(a), which precludes

compensation for service-connected periodontal disease (also known as gum disease), conflicts with

38 U.S.C. §§ 1110 and 1131, the statutory provisions authorizing VA disability compensation for

disabilities resulting from an injury suffered or disease contracted in the line of duty, or for

aggravation of a preexisting injury suffered or disease contracted in the line of duty, in active service.

Appellant's Brief (App. Br.) at 2-5. The Secretary argues that, pursuant to the rating schedule,

periodontal disease is not considered to be a disabling condition. Secretary (Sec'y) Br. at 4-8. For

the reasons set forth below, the Court will affirm the July 2004 Board decision.

I. Relevant Background

Ms. Byrd served on active duty in the U.S. Air Force from August 1952 to November 1953,

March 1981 to June 1987, November 1987 to March 1988, and from June 1990 to September 1990.

Record (R.) at 8-11; see R. at 2. She had additional service with the Naval Reserve. R. at 8-11. Her

July and August 1952 enlistment medical examinations did not reveal any dental problems. R. at

14-21. Her service medical records (SMRs) showed delayed healing of her gums after an October

1952 tooth extraction. R. at 22. During a November 1953 dental examination it was discovered that

Ms. Byrd was missing six teeth and had two other teeth capable of restoration. R. at 24. A June

1973 annual Naval Reserve dental examination report revealed that all of her upper teeth had been

replaced by dentures and that she was missing six lower teeth. R. at 32; see also, e.g., R. at 48

(showing same dental information on June 1977 examination report), 96 (showing essentially the

same dental information in 1992). A March 1986 SMR recorded that Ms. Byrd had reported that a

tooth extraction 15 years earlier had led to excessive bleeding. R. at 73-74.

In December 2000, Ms. Byrd filed a claim for VA outpatient treatment and service-connected

compensation for gum disease. R. at 99. In October 2001, a VA regional office (RO) denied her

claim for compensation on the basis that periodontal disease, claimed as gum disease, is not a

disabling condition but that her gum disease may be considered service connected solely for the

purpose of VA dental examination or outpatient dental treatment. R. at 112-13. She appealed to the

Board. R. at 121-22, 124-42, 144. Following the receipt of additional evidence, the RO issued a

Supplemental Statement of the Case, again explaining that periodontal disease is not a condition for

which VA pays compensation. R. at 153. The RO also noted that in January 2001 a copy of her

dental claim was sent to the VA Medical Center in Hampton, Virginia, and that she should contact

that facility for any dental treatment. R. at 153.

On July 21, 2004, the Board issued the decision on appeal. R. at 1-4. The Board determined

that, under the law administered by VA, gum disease is not a disability for which VA disability

compensation is payable. R. at 2-4. Citing 38 C.F.R. § 3.381(a), the Board noted that periodontal

or gum disease will be considered service connected solely for the purpose of establishing eligibility

for outpatient dental treatment. R. at 3. The Board also stated:

2

While there is evidence in service of delayed healing of the gums, following

extraction of some teeth, gum disease was not documented during service and it is

not clear that the veteran currently has gum diseases. In any event, gum disease is not

a disability for which compensation may be paid so [sic] the present claim must be

denied because of the absence of legal merit.

R. at 4. The Board further noted that a claim for service connection for a dental disorder is also

considered a claim for VA outpatient dental treatment and stated that the claim for outpatient dental

treatment had been referred by the RO to the appropriate VA medical center. R. at 2.

On appeal, the appellant's sole argument is that the Board erred in relying on 38 C.F.R.

§ 3.381(a) to deny her claim for VA compensation. She contends that § 3.381(a) conflicts with

38 U.S.C. §§ 1110 and 1131, the statutory provisions that authorize VA to compensate veterans for

their disabilities. App. Br. at 2-5. She asserts that "disability" means "impairment in earning

capacity resulting from such disease or injuries" but that § 3.381(a) categorically disallows

compensation for certain dental conditions, regardless of their effect on a veteran's earning capacity.

App. Br. at 4 (quoting 38 C.F.R. § 4.1 (2004)). She also notes that the Secretary fails to give any

rationale for the regulatory restriction excluding gum disease and that the omission is significant in

light of the Secretary's having once considered similar dental disabilities compensable. App. Br. at

5 (citing Manio v. Derwinski, 1 Vet.App. 140, 145 (1991)).

Relying on Simington v. West, the Secretary counters that periodontal disease is not a

disabling condition. Sec'y Br. at 4-6 (citing Simington, 11 Vet.App. 41 (1998)). He argues that the

schedule of ratings under 38 C.F.R. § 4.150 sets forth the conditions that are considered "disabling"

and that periodontal disease is not included but, instead, is excluded with an explanation that it is

not considered to be a disabling condition. Sec'y Br. at 7. He also argues that his authority for

promulgating § 3.381 lies not in the statutory provisions cited by the appellant but in 38 U.S.C.

§ 1712, which provides the eligibility requirements for VA outpatient treatment of dental conditions

and disabilities. Sec'y Br. at 6-7.

In reply, the appellant contends that the Court's decision in Simington is not controlling

because it addressed only the issue of service connection for the purpose of receiving VA outpatient

dental treatment and did not address service connection of gum disease for the purpose of disability

compensation. Reply at 1. The appellant further contends that the Secretary's reference to section

3

1712 contradicts his position because (1) it provides for VA treatment of a dental condition even

though the condition is not disabling, 38 U.S.C. § 1712(a)(1)(B), and (2) it does not authorize the

Secretary to promulgate regulations restricting or excluding certain dental conditions for the purpose

of compensation or disability rating. Reply at 2.

II. Analysis

This Court's jurisdiction is described in 38 U.S.C. § 7252(b):

(b) Review in the Court shall be on the record of proceedings before the Secretary

and the Board. The extent of the review shall be limited to the scope provided in

section 7261 of this title. The Court may not review the schedule of ratings for

disabilities adopted under section 1155 of this title or any action of the Secretary in

adopting or revising that schedule.

38 U.S.C. § 7252(b). Section 1155 of title 38, U.S. Code, provides, in pertinent part:

The Secretary shall adopt and apply a schedule of ratings of reductions in earning

capacity from specific injuries or combination of injuries. The ratings shall be based,

as far as practicable, upon the average impairments of earning capacity resulting from

such injuries in civil occupations.

38 U.S.C. § 1155. Section 1110 of title 38, U.S. Code, provides, in pertinent part:

For disability resulting from personal injury suffered or disease contracted in line

of duty, or for aggravation of a preexisting injury suffered or disease contracted in

line of duty, in the active military, naval, or air service, during a period of war, the

United States will pay to any veteran thus disabled and who was discharged or

released under conditions other than dishonorable from the period of service in which

said injury or disease was incurred, or preexisting injury or disease was aggravated,

compensation as provided in this subchapter, but no compensation shall be paid if the

disability is a result of the person’s own wilful misconduct or abuse of alcohol or

drugs.

38 U.S.C. § 1110; see 38 U.S.C. § 1131 (similar provision for peacetime disability compensation).

Section 7252(b) removes from this Court's jurisdiction all review involving the content of

the rating schedules and the Secretary's actions in adopting or revising them. See Wanner v. Principi,

370 F.3d 1124, 1130 (Fed. Cir. 2004). The U.S. Court of Appeals for the Federal Circuit (Federal

Circuit) in Wanner stated: "[T]he schedule of ratings consists of both the ratings and the injuries for

which the ratings are provided. The Secretary's discretion over the schedule, including procedures

4

followed and content selected, is insulated from judicial review with one recognized exception

limited to constitutional challenges." Wanner, 370 F.3d at 1131.

In Wanner, the Federal Circuit held that this Court lacked jurisdiction to review the content

of 38 C.F.R. § 4.87a, Diagnostic Code (DC) 6260 (1998), the provision of the rating schedule that

assigns a 10% disability rating for "Tinnitus: Persistent as a symptom of head injury, concussion or

acoustic trauma." Wanner, 370 F.3d at 1130-31. The appellants in that case had argued that because

the trauma requirement of DC 6260 limited the payment of benefits to only certain veterans suffering

from service-connected tinnitus, the provision drew distinctions that were impermissible under

section 1110's mandate requiring the United States to pay benefits "to any veteran thus disabled."

Id. at 1128. The Federal Circuit held that this Court, pursuant to section 7252(b), lacked jurisdiction

to review the rating schedule for compliance with the statutory authority under which disability

compensation is paid, 38 U.S.C. § 1110, and thus lacked jurisdiction to invalidate the pre-1999 DC

6260 trauma requirement as inconsistent with section 1110. Wanner, 370 F.3d at 1129-31. The

Federal Circuit there found "impermissible" this Court's "direct review of the content of the rating

schedule" and concluded that it was "indistinguishable from the review of 'what should be considered

a disability.'" Id. at 1131 (quoting Wanner v. Principi, 17 Vet.App. 4, 14-15 (2003)). But see Sellers

v. Principi, 372 F.3d 1318, 1324 (Fed. Cir. 2004) (holding that Court had jurisdiction to entertain

challenge to VA interpretation of 38 C.F.R. § 4.130).

The parties do not dispute that VA regulations exclude from VA compensation the condition

at issue here. While Ms. Byrd cites to 38 C.F.R. § 3.381(a), the essence of her argument, as the

regulatory history of § 3.381(a) and § 4.150 below shows, is a challenge to the content of 38 C.F.R.

§ 4.150, which does not list periodontal disease as a disability or a compensable disability and which

contains a Note stating that loss of the alveolar process as a result of periodontal disease "is not

considered disabling." The appellant's challenge would require the Court to review the content of

a rating-schedule regulation, which review the Court cannot undertake, see Wanner, supra, and not

simply to interpret its provisions. See Sellers, 372 F.3d at 1324 (concluding that appellants'

argument challenged VA's interpretation of regulation § 4.130 ("Schedule of ratings – mental

disorders"), specifically the relationship between the DSM-IV (DIAGNOSTIC AND STATISTICAL

MANUAL OF MENTAL DISORDERS, 4th ed.) and the general rating formula). Even though Ms. Byrd

5

raises this argument for the first time on appeal to the Court, we "may hear legal arguments raised

for the first time with regard to a claim that is properly before the [C]ourt." Maggitt v. West,

202 F.3d 1370, 1377 (Fed. Cir. 2000). The Court has a duty to "decide all relevant questions of law,

interpret constitutional, statutory, and regulatory provisions, and determine the meaning or

applicability of the terms of an action of the Secretary." 38 U.S.C. § 7261(a)(1); see e.g., Davenport

v. Brown, 7 Vet.App. 476 (1995); Tallman v. Brown, 7 Vet.App. 453 (1995); Gardner v. Derwinski,

1 Vet.App. 584 (1991), aff'd sub nom. Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff'd,

513 U.S. 115 (1994).

Regulation § 4.150 is entitled "Schedule of ratings–dental and oral conditions" and lists

disabilities with assigned DCs, DC 9900 through DC 9916. DC 9913 provides rating criteria and

disability percentages for loss of teeth. 38 C.F.R. § 4.150, DC 9913 (2005). DC 9913 is assigned

for loss of teeth as a result of "loss of substance of body of maxilla or mandible without loss of

continuity" and provides, where the lost masticatory surface cannot be restored by suitable

prosthesis, for a range of ratings from 10% to 40% , and also provides, where the loss of masticatory

surface can be restored by suitable prosthesis, for a 0% disability rating. Id. The Note appended to

that DC reads: "NOTE–These ratings apply only to bone loss through trauma or disease such as

osteomyelitis, and not to the loss of the alveolar process as a result of periodontal disease, since such

loss is not considered disabling." In the instant case, there is no evidence that bone loss was the

cause of Ms. Byrd's loss of teeth. Indeed, she concedes that her loss was the result of periodontal

disease.

The regulatory history of § 4.150 shows that prior to 1994 that regulation listed (below a Note

similar in wording to that quoted above) the following dental conditions with no DC assigned:

Carious teeth, treatable; Missing teeth, replaceable; Dento-alveolar abscess; Pyorrhea alveolaris; and

Vincent’s stomatitis. A 0% rating was assigned to these conditions. 38 C.F.R. § 4.150 (1993). In

January 1993, VA issued a proposed rule, inter alia, to delete these dental conditions from § 4.150

and to add a new section designated "§ 4.149," which stated that these dental conditions were not

compensable conditions, but may be considered service connected conditions solely for the purpose

of establishing entitlement to VA dental examinations or VA outpatient dental treatment.

58 Fed. Reg. 4961 (Jan. 19, 1993). When proposing this revision to the rating schedule, the

6

Secretary in the Supplementary Information noted that "[u]nlike other disabilities in the schedule

these conditions are not considered disabling" and that "the issue of service connection is addressed

by raters only for the purpose of determining entitlement to outpatient dental treatment" under the

provisions of 38 C.F.R. §§ 3.382 and 17.123. 58 Fed. Reg. at 4961. The Secretary explained:

"Since the rating schedule is primarily a classification and guide for the evaluation of disabilities,

and since the VBA adjudication manual, M21-1, contains procedural instructions regarding dental

ratings, inclusion of these non-disabling conditions in the rating schedule serves no useful purpose."

Id.

Consistent with the proposed rule, the Secretary issued his final regulation that, inter alia,

created new § 4.149 in part 4, the schedule for rating disabilities. 59 Fed. Reg. 2529, 2530 (Jan. 18,

1994). Regulation § 4.149 was entitled "Rating diseases of the teeth and gums" and provided:

"Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, periodontal disease

(pyorrhea), and Vincent's stomatitis are not disabling conditions, and may be considered service-

connected solely for the purpose of determining entitlement to dental examinations or outpatient

dental treatment under the provisions of §§ 17.120 or 17.123 of this chapter." 38 C.F.R. § 4.149

(1994).

In 1997, the Secretary proposed amending VA's regulations concerning dental conditions,

inter alia, to list in § 3.381(a) the noncompensable dental conditions and to delete § 4.149.

62 Fed. Reg. 8201, 8202 (Feb. 24, 1997). In the Supplementary Information, the Secretary

explained: "The Schedule for Rating Disabilities is a guide for evaluating disabilities for

compensation purposes. Because the dental conditions listed in § 4.149 are not evaluated for

compensation, but only to determine eligibility for treatment, it is more appropriate to list them in

38 [C.F.R.] part 3, which contains general rules for determining service connection." 62 Fed. Reg.

at 8202. The Secretary also explained that he was proposing to rewrite §§ 3.381 and 3.382, which

provided information for determining which dental conditions were service connected for

outpatient-treatment purposes. Id. In his final regulation, the Secretary deleted the information

contained in §§ 3.382 and 4.149 and promulgated a revised § 3.381. 64 Fed. Reg. 30,392, 30,393

(June 8, 1999). Regulation § 3.381(a) provided then as it does now:

7

(a) 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

§ 17.161 of this chapter.

38 C.F.R. § 3.381(a) (1999 - 2005).

This regulatory history highlights the relationship between §§ 4.150 and 3.381(a), and shows

that when VA established a rating schedule for dental and oral conditions, VA determined that

periodontal disease was not to be included as a disability under § 4.150. We may not review any

challenge to § 4.150 for its exclusion of periodontal disease. The appellant's challenge invites the

Court to undertake a review that is "indistinguishable from the review of 'what should be a

disability.'" Wanner, 370 F.3d at 1131 (quoting Wanner, 17 Vet.App. at 14-15). Accordingly,

pursuant to section 7252(b) and Wanner, supra, this Court lacks jurisdiction to review the validity

of §§ 4.150 or 3.381(a) in terms of any inconsistency with 38 U.S.C. § 1110.

Ms. Byrd's argument that section 1712 restricts the Secretary's authority to determine whether

a condition is a disability for compensation purposes is without merit. Section 1712 sets forth the

eligibility requirements for VA outpatient treatment of dental conditions and disabilities. It

specifically recognizes that there are both compensable and noncompensable service-connected

dental conditions. Compare 38 U.S.C. § 1712(a)(1)(A) with 38 U.S.C. § 1712(a)(1)(B). Although

Congress intended for VA to provide dental treatment in cases meeting the requirements specified

in 38 U.S.C. § 1712, it did not provide guidance or requirements on what if any dental conditions

qualify for VA compensation. The Secretary has chosen to eliminate periodontal disease, among

other common conditions such as "carious teeth" and "missing teeth" from diseases generally eligible

for VA compensation and that decision as reflected in the rating schedule, discussed above, is not

reviewable by this Court.

Finally, the appellant is incorrect that VA recognized a similar dental disability (pyorrhea)

as compensable at the time of this Court's decision in Manio, supra. In 1988, VA regulation § 4.150

listed certain dental conditions at the end of DC 9913 and assigned to "Pyorrhea alveolaris" a 0%

rating. 38 C.F.R. § 4.150 (1988). Accordingly, there is no indication in the rating schedule that a

claimant could obtain a compensable rating for that dental condition. In Manio the Court did cite

8

to 38 C.F.R. §§ 3.381 and 3.382(c) (1990), but did not address VA compensation for those

conditions. See Manio, 1 Vet.App. at 145.

III. Conclusion

On the basis of the foregoing analysis and upon consideration of the record on appeal and the

parties' pleadings, the Court holds that it lacks jurisdiction to review the appellant's challenge to the

Secretary's regulations that exclude periodontal disease as a disability for which VA compensation

may be paid. The July 21, 2004, decision of the Board that denied service connection for gum

disease for the purpose of VA compensation is AFFIRMED.

9