[Federal Register Volume 62, Number 36 (Monday, February 24, 1997)]
[Proposed Rules]
[Pages 8201-8204]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-4419]


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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]
BILLING CODE 8320-01-P