Service Connection of Dental Conditions for Treatment Purposes

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Parts 3 and 4

RIN 2900-AH41

Service Connection of Dental Conditions for Treatment Purposes

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs is proposing to amend its

adjudication regulations for determining service connection of dental

conditions for purposes of eligibility for outpatient dental treatment.

Current regulations contain overlapping provisions which do not clearly

state requirements for service connection, and provide that service

connection will be granted for certain dental conditions shown after a

``reasonable period of service'' without defining what constitutes such

a period. We intend to consolidate the information, and replace the

term ``reasonable period of service'' with a precise period of 180

days. We also propose to eliminate redundant material, and to clearly

state requirements for service connection for purposes of eligibility

for outpatient dental treatment.

DATES: Comments must be received on or before April 25, 1997.

ADDRESSES: Mail or hand deliver written comments to: Director, Office

of Regulations Management (02D), Department of Veterans Affairs, 810

Vermont Ave., NW, Room 1154, Washington, DC 20420. Comments should

indicate that they are submitted in response to ``RIN 2900-AH41.'' All

written comments will be made available for public inspection at the

above address in the Office of Regulations Management, Room 1158,

between the hours of 8 a.m. and 4:30 p.m., Monday through Friday

(except holidays).

FOR FURTHER INFORMATION CONTACT: Lorna Fox, Consultant, Regulations

Staff, Compensation and Pension Service (213), Veterans Benefits

Administration, Department of Veterans Affairs, 810 Vermont Ave., NW,

Washington, DC 20420, (202) 273-7223.

SUPPLEMENTARY INFORMATION: The provisions of 38 U.S.C. 1712 (restated

in 38 CFR 17.123) set forth eligibility requirements for VA outpatient

treatment of dental conditions and disabilities. This section provides

that veterans with non-compensable service-connected dental conditions

are entitled to a one-time correction of the dental condition provided

that certain requirements are met, including application for dental

treatment made within 90 days of service discharge. Following

completion of this initial care, subsequent additional treatment may be

provided in certain other cases, i.e., if the veteran was a prisoner of

war, if the dental condition or disability is due to combat or other

in-service trauma, or if the veteran has service-connected disabilities

rated at 100 percent.

38 CFR part 4, the Schedule for Rating Disabilities, provides

evaluations for dental conditions considered disabling in nature. (See

Sec. 4.150, Schedule of ratings--dental and oral conditions.) There are

other dental conditions, however, which are not considered disabling

and thus do not generally fall under the purview of Sec. 4.150. The

issue of service connection arises for these conditions only for the

purpose of

[[Page 8202]]

determining eligibility for outpatient dental treatment. These

conditions are listed at 38 CFR 4.149, ``Rating diseases of the teeth

and gums'', and include treatable carious teeth, replaceable missing

teeth, dental or alveolar abscesses, periodontal disease, and Vincent's

stomatitis (also referred to as Vincent's infection, Vincent's disease,

or acute necrotizing gingivitis).

The Schedule for Rating Disabilities is a guide for evaluating

disabilities for compensation purposes. Because the dental conditions

listed in Sec. 4.149 are not evaluated for compensation, but only to

determine eligibility for treatment, it is more appropriate to list

them in 38 CFR part 3, which contains general rules for determining

service connection. We therefore propose to list these non-compensable

dental conditions in Sec. 3.381(a) and to delete section Sec. 4.149.

The current regulations at 38 CFR 3.381 and 3.382 set forth the

principles for determining whether a dental condition was incurred or

aggravated during service for purposes of treatment. Provisions for

determining which conditions are service connected for outpatient

treatment purposes, and which are not, are scattered throughout both

sections. Section 3.381 establishes the conditions under which dental

conditions that were present at entry into service will be service

connected; Sec. 3.382 (a) and (b) list the evidence requirements for

establishing service connection; and Sec. 3.382(c) states that certain

dental conditions will not be service connected. We propose to rewrite

the regulations to consolidate the information, make requirements for

service connection for treatment purposes clear, list specific

conditions that will not be service connected, and eliminate redundant

material.

The regulations at Secs. 3.381 and 3.382 currently state that

service connection for certain non-compensable dental conditions is

warranted only if the conditions are shown after a ``reasonable period

of service.'' The condition of ``reasonable period of service'' was

intended to provide a basis for determining those dental conditions

which would be considered as incurred or aggravated during active duty.

(See 38 U.S.C. 1110, 1131.) In the absence of a definition for the term

``reasonable period of service,'' the Court of Veterans Appeals held in

Manio v. Derwinski, 1 Vet. App. 140 (1991), that four months ``is

sufficient to satisfy the `reasonable period of service' requirement''

under the facts of that case.

We propose to revise Sec. 3.381 to replace the subjective term

``reasonable period of service'' with the objective requirement of 180

days or more of active service. Dental caries and other dental

pathology take time to develop, often a year or two in permanent teeth.

Thus it is more likely than not that caries or pathology that became

apparent within the first 180 days of a person's active service pre-

existed that service. Periodontal disease, which results from the long

term effects of plaque on the periodontium, also develops over time,

and we believe the same period is appropriate for effects of this

condition.

In Sec. 3.381, paragraph (c) currently states that effective

principles relating to the establishment of service connection for

dental diseases and injuries by reason of their association with other

service-connected diseases and injuries will be observed. The

provisions governing such secondary service connection are contained in

Sec. 3.310. Therefore, inclusion of this statement here is unnecessary

and we propose to delete it.

In Sec. 3.381, paragraph (d) currently states that the presumption

of soundness does not apply to non-compensable dental conditions.

However, 38 CFR 3.304(b) provides that a veteran shall be considered to

have been in sound condition when entering service ``except as to

defects, infirmities, or disorders noted at entrance into service.'' In

order to maintain consistency between the provisions of 38 CFR part 3,

we propose to eliminate the statement in Sec. 3.381, paragraph (d) that

the presumption of soundness does not apply to non-compensable dental

conditions.

In Sec. 3.381, paragraph (b) currently states that treatment during

service is not considered per se as aggravation of a condition noted as

present at entry because such treatment is considered ameliorative. We

propose to retain that principle in proposed Sec. 3.381, paragraph (c)

but will replace the phrase ``per se'' with a statement that treatment

in service is not evidence that a condition noted at entry has been

aggravated, unless additional pathology developed after 180 days or

more of service. The use of the 180-day time period has already been

explained.

We propose to place in Sec. 3.381, paragraph (d), specific rules

for determining whether dental conditions that are noted at entry into

service and treated during active duty are service connected for

treatment purposes. This paragraph will incorporate provisions now

listed at Sec. 3.381(b) for teeth that are noted as carious but

restorable, filled, and defective but not restorable. We propose to

include new provisions for teeth normal at entry but which are filled

or extracted during service and teeth missing at entry because these

situations frequently require decision but are not addressed in the

current regulation.

In Sec. 3.381, paragraph (d)(1), we propose to state that teeth

noted as normal at the time of entry into service will be service

connected only if filled or extracted after 180 days or more of active

service. Setting a precise period of 180 days for development of dental

pathology as a requirement for service connection is consistent with

our statement that conditions that manifested before expiration of 180

days of active service more likely than not pre-existed that service.

In Sec. 3.381, paragraph (d)(2), we propose to state that teeth

noted as filled at entry into service will be service connected if they

were extracted, or if the existing filling was replaced, after 180 days

or more of service. This is not a change from the current provision,

but substitutes a precise period of 180 days for the ``reasonable

time'' provision of the current rule.

In Sec. 3.381, paragraph (d)(3), we propose to state that teeth

that are carious but restorable at entry will not be service connected

if they are filled during service, but that if new caries develop in

the same tooth 180 days or more after a filling has been placed,

service connection will be granted. This substitutes a precise period

for the current language granting service connection if such new caries

develop ``a reasonable time'' after the original cavity has been

filled.

In Sec. 3.381, paragraph (d)(4), we propose to state that teeth

noted as carious but restorable at entry will be service connected,

regardless of whether or not they are filled, if extraction is required

after 180 days or more of active service. This is not a change from the

current provision, but substitutes the precise period of 180 days for

the ``reasonable time'' provision of the current rule.

In Sec. 3.381, paragraph (d)(5), we propose to state that teeth

noted to be defective and non-restorable at entry will not be service

connected, regardless of treatment during service. This is not a change

from the current provision.

In Sec. 3.381, paragraph (d)(6), we propose to state that teeth

noted at entry as missing will not warrant service connection for

treatment purposes, notwithstanding treatment which may have been

administered during active duty. This provision is consistent with

proposed Sec. 3.381(c) which states that treatment in service for a

pre-existing condition does not represent aggravation of that

condition.

[[Page 8203]]

In Sec. 3.381, paragraph (e), we propose to list conditions that

will not be service connected for treatment purposes. Conditions now

listed at Sec. 3.382(c) for which service connection will not be

granted include: salivary deposits; gingivitis; acute Vincent's

disease; pyorrhea; impacted or malposed teeth and third molars (wisdom

teeth).

Impacted and malposed teeth are considered developmental defects,

as is the presence of third molars. As noted above, these conditions

are not service connected under current provisions, unless separate

pathology develops ``after a reasonable time.'' In the revised

Sec. 3.381 (e)(3) and (e)(4), we propose to replace this term with the

precise period of 180 days or more of active service. We have already

explained our use of the 180-day time period.

We have incorporated current medical terminology in the regulation,

and; therefore, have substituted the term ``calculus'' for ``salivary

deposits'' and ``periodontal disease'' for the terms ``gingivitis,''

``Vincent's disease,'' and ``pyorrhea.''

The current regulation states that gingivitis is not a disease

entity and thus is not ratable. Gingivitis is an inflammatory condition

which is usually an acute condition, but can be a precursor of more

serious inflammatory processes. Vincent's disease is a form of gingival

inflammation also called ``trench mouth'' or ``necrotizing ulcerative

gingivitis'' which the current regulation does not service connect in

its acute state. Periodontitis is a more current term for pyorrhea. All

of these conditions are encompassed by the broader, more general term

periodontal disease. Periodontal disease is related to dental hygiene

and can be affected by such other factors as diet, abnormal stress,

other disease processes, and reaction to certain drugs or chemicals.

With proper treatment, most periodontal disease resolves with no

residuals. For this reason, service connection for acute periodontal

disease is not warranted. However, under the current regulation,

chronic periodontal disease (pyorrhea), which may result in tooth

extraction, warrants service connection for the lost teeth. We propose

to retain this provision, with the clarification that such tooth loss

will be service connected only if extraction is required after at least

180 days of service.

We propose to eliminate as unnecessary paragraphs (a) and (b) of

Sec. 3.382, ``Evidence to establish service connection for dental

disabilities.'' These paragraphs contain information about kinds of

evidence needed to establish service connection and alternate sources

of evidence when service medical records are unavailable. Evidence

requirements are adequately covered elsewhere in the regulations and

stating them here is unnecessary. (See regulations at 38 CFR 3.303,

``Principles relating to service connection'' and Sec. 3.304 ``Direct

service connection; wartime and peacetime.'.)

Regulatory Flexibility Act

The Secretary hereby certifies that this proposed amendment will

not have a significant economic impact on a substantial number of small

entities as they are defined in the Regulatory Flexibility Act (RFA), 5

U.S.C. 601-612. The proposed amendment would not directly affect any

small entities. Only VA beneficiaries could be directly affected.

Therefore, pursuant to 5 U.S.C. 605(b), the proposed amendment is

exempt from the initial and final regulatory flexibility analysis

requirements of sections 603 and 604.

The Catalog of Federal Domestic Assistance program numbers are

64.104, 64.105, 64.109 and 64.110.

List of Subjects

38 CFR Part 3

Administrative practice and procedure, Claims, Disability benefits,

Health care, Pensions, Pesticides and pests, Radioactive materials,

Veterans, Vietnam.

38 CFR Part 4

Disability benefits, Pensions, Individuals with disabilities,

Veterans.

Approved: November 6, 1996.

Jesse Brown,

Secretary of Veterans Affairs.

For the reasons set forth in the preamble, 38 CFR parts 3 and 4 are

proposed to be amended as follows:

PART 3--ADJUDICATION

Subpart A--Pension, Compensation, and Dependency and Indemnity

Compensation

1. The authority citation for part 3, subpart A continues to read

as follows:

Authority: 38 U.S.C. 501(a), unless otherwise noted.

2. Section 3.381 is revised to read as follows:

Sec. 3.381 Service connection of dental conditions for treatment

purposes.

(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 section 17.123 of this

chapter.

(b) The rating activity will 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. When applicable, the rating activity

will determine whether the condition is due to combat or other in-

service trauma, or whether the veteran was interned as a prisoner of

war.

(c) In determining service connection, the condition of teeth and

periodontal tissues at the time of entry into active duty will be

considered. Treatment during service, including filling or extraction

of a tooth, or placement of a prosthesis, will not be considered

evidence of aggravation of a condition that was noted at entry, unless

additional pathology developed after 180 days or more of active

service.

(d) The following principles apply to dental conditions noted at

entry and treated during service:

(1) Teeth noted as normal at entry will be service connected if

they were filled or extracted after 180 days or more of active service.

(2) Teeth noted as filled at entry will be service connected if

they were extracted, or if the existing filling was replaced, after 180

days or more of active service.

(3) Teeth noted as carious but restorable at entry will not be

service connected on the basis that they were filled during service.

However, new caries that developed 180 days or more after such a tooth

was filled will be service connected.

(4) Teeth noted as carious but restorable at entry, whether or not

filled, will be service connected if extraction was required after 180

days or more of active service.

(5) Teeth noted at entry as non-restorable will not be service

connected, regardless of treatment during service.

(6) Teeth noted as missing at entry will not be service connected,

regardless of treatment during service.

(e) The following will not be considered service connected for

treatment purposes:

(1) Calculus;

(2) Acute periodontal disease;

(3) Third molars, unless disease or pathology of the tooth

developed after 180 days or more of active service, or was due to

combat or in-service trauma; and

(4) Impacted or malposed teeth, and other developmental defects,

unless disease or pathology of these teeth developed after 180 days or

more of active service.

[[Page 8204]]

(f) Chronic periodontal disease. Teeth extracted because of chronic

periodontal disease will be service connected only if they were

extracted after 180 days or more of active service.

(Authority: 38 U.S.C. 1712)

Sec. 3.382 [Removed]

3. Section 3.382 is removed.

PART 4--SCHEDULE FOR RATING DISABILITIES

Subpart B--Disability Ratings

4. The authority citation for part 4 continues to read as follows:

Authority: 38 U.S.C. 1155.

Sec. 4.149 [Removed]

5. Section 4.149 is removed.

[FR Doc. 97-4419 Filed 2-21-97; 8:45 am]

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