UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 05-2311

THOMAS M. NIELSON, APPELLANT,

V.

ERIC K. SHINSEKI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued January 13, 2009 Decided May 21, 2009)

Kirsten V.K. Robbins, with whom Frederick C. Schafrick and Brooke E. McDonough, all of

Washington, D.C., were on the brief for the appellant.

Pamela M. Nash, with whom Paul J. Hutter, General Counsel; R. Randall Campbell,

Assistant General Counsel; and David L. Quinn, Deputy Assistant General Counsel, all of

Washington, D.C., were on the brief for the appellee.

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

DAVIS, Judge: U.S. Air Force veteran Thomas M. Nielson appeals through counsel that

portion of a June 23, 2005, Board of Veterans' Appeals (Board) decision that denied him entitlement

to VA outpatient dental treatment and related dental appliances. This appeal is timely and the Court

has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the following reasons, the Court

will affirm the Board's June 2005 decision.

I. BACKGROUND

Mr. Nielson served in the U.S. Air Force from September 25, 1950, to September 24, 1954,

and from March 24, 1955, to October 11, 1957. During his service in the Korean Conflict between

June 6, 1952, and October 27, 1952, all but three of Mr. Nielson's teeth were extracted, most without
Although Mr. Nielson's service medical records are presumed destroyed in the National Personnel Records 1

Center fire, both parties suggest that Mr. Nielson suffered from periodontal disease.

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anesthesia. His remaining three teeth were removed while he was still in the military, but after he 1

returned to the United States. The military provided him a set of dentures in May 1953. On

discharge from the Air Force, his separation examination report listed all of his teeth as missing.

Mr. Nielson sought service connection for the loss of his teeth in April 1991. He also

requested VA "dental care (new dentures) in accordance with the provisions of" 38 U.S.C.

§ 612(6)(b)(1)(C) (now 38 U.S.C. § 1712) (furnishing outpatient dental services for serviceconnected dental conditions due to combat injuries or "other service trauma"). Record (R.) at 173.

In a Feburary 1992 decision, VA afforded Mr. Nielson the presumption of soundness on entry into

service and granted service connection for the extraction of all his teeth, except for his wisdom teeth,

and assigned a noncompensable disability rating. As part of that decision, VA found that

Mr. Nielson's teeth extractions were not due to "service trauma" or "combat dental injuries." R. at

225. That same month, the Salt Lake City, Utah, VA medical center reviewed Mr. Nielson's

application for outpatient dental treatment and determined that because he did "not have a serviceconnected dental condition or disability determined to be the result of combat wounds or other

injuries" he was not eligible for outpatient dental treatment under section 1712(a)(1)(C). R. at 233.

In June 1993, the Board affirmed that decision, and Mr. Nielson appealed to the Court. The Court

remanded the matter and ordered the Board to "consult with the [VA] General Counsel as to the

proper interpretation of 38 C.F.R. §§ 3.381(e) [(1993)] and 17.123(c) [now § 17.161(c) (2008)

(authorizing outpatient dental treatment for certain dental conditions resulting from combat wounds

or "service trauma")], particularly the definition of 'service trauma' and its application to the case at

hand." R. at 342.

On remand, the VA General Counsel opined that "merely to have had dental extractions

during service is not tantamount to dental trauma," and held that "[f]or the purposes of determining

whether a veteran has Class II[(a)] eligibility for dental care under 17 [sic] C.F.R. § 17.123(c), the

term 'service trauma' does not include the intended effects of treatment provided during the veteran's

military service." VA Gen. Coun. Prec. 5-97 (Jan. 22, 1997) [hereinafter G.C. Prec. 5-97]. Relying

on that opinion, the Board concluded that "the removal of the veteran's teeth in service by military
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dentists due to periodontal infection(s) does not constitute 'service trauma' and does not establish his

eligibility to receive Class II(a) outpatient dental treatment." R. at 35. Mr. Nielson appealed that

decision.

II. CONTENTIONS ON APPEAL

Mr. Nielson argues that the circumstances surrounding the extraction of his teeth qualify as

"service trauma." He asserts that the Board's statement of reasons or bases for its decision, which

relies on the General Counsel's opinion, is inadequate because that opinion fails to address the

specifics of his case as ordered by the Court and is otherwise unpersuasive. He also contends that

the Board was clearly erroneous in finding that the substandard dental care he received in service

does not constitute "service trauma."

The Secretary argues for affirmance of the Board's decision, asserting that because the Board

is bound by G.C. Prec. 5-97, "the Court cannot conclude that the Board's findings, consistent with

this opinion, were clearly erroneous." Secretary's Brief at 5. He also asserts that because G.C. Prec.

5-97 interprets a regulation and not a statute, it is entitled to substantial deference.

In response, Mr. Nielson argues that the Court owes no deference to the General Counsel

opinion because VA's regulation merely parrots the statutory language and thus is not an

interpretation of a regulatory term. He also reiterates his arguments that the General Counsel opinion

is unpersuasive and that the substandard dental care he received in service constitutes "service

trauma" under section 1712(a)(1)(C).

III. ANALYSIS

A. Statutory Interpretation

This case involves the proper interpretation of the meaning of the phrase "service trauma"

as used in 38 U.S.C. § 1712(a)(1)(C) and 38 C.F.R. § 17.161(c). "Outpatient dental services and

treatment, and related dental appliances, shall be furnished under this section only for a dental

condition or disability . . . which is a service-connected dental condition or disability due to combat

wounds or other service trauma." 38 U.S.C. § 1712(a)(1)(C); see 38 C.F.R. § 17.161(c) (authorizing

certain outpatient dental treatment for veterans with "service-connected noncompensable dental
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condition or disability adjudicated as resulting from combat wounds or service trauma"). No doubt,

Mr. Nielson has a dental disability. To determine whether that disability is a condition caused by

service trauma, we must first determine the meaning of "service trauma" as used in section

1712(a)(1)(C). A statute's plain meaning is "derived from its text and its structure." Myore v.

Nicholson, 489 F.3d 1207, 1211 (Fed. Cir. 2007) (quoting McEntee v. MSPB, 404 F.3d 1320, 1328

(Fed. Cir. 2005)); see Gardner v. Derwinski, 1 Vet.App. 584, 586 (1991) ("Determining a statute's

plain meaning requires examining the specific language at issue and the overall structure of the

statute." (citing Bethesda Hosp. Ass'n v. Bowen, 485 U.S. 399, 403-05 (1988))), aff'd sub nom.

Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff'd, 513 U.S. 115 (1994). If "the plain meaning

of a statute is discernable, that 'plain meaning must be given effect,'" Johnson v. Brown, 9 Vet.App.

369, 371 (1996) (quoting Tallman v. Brown, 7 Vet.App. 453, 460 (1995)), unless a "'literal

application of [the] statute will produce a result demonstrably at odds with the intention of its

drafters,'" Gardner v. Derwinski, 1 Vet.App. at 586-87 (quoting Griffin v. Oceanic Contractors, Inc.,

458 U.S. 564 (1982)); see also Roper v. Nicholson, 20 Vet.App. 173, 180 (2006). "[W]hen a

reviewing court 'find[s] the terms of a statute unambiguous, judicial inquiry is complete except in

rare and exceptional circumstances.'" Smith v. Derwinski, 2 Vet.App. 429, 431 (1992) (quoting

Demarest v. Manspeaker, 498 U.S. 184 (1991)). However, if a statute is ambiguous, "interpretive

doubt is to be resolved in the veteran's favor." Brown v. Gardner, 513 U.S. at 118; Padgett v.

Nicholson, 473 F.3d 1364, 1368 (Fed. Cir. 2007).

The plain meaning of a term "begins with its 'ordinary, contemporary, common meaning.'"

McGee v. Peake, 511 F.3d 1352, 1356 (Fed. Cir. 2008) (quoting Williams v. Taylor, 529 U.S. 420,

431 (2000)). It is commonplace to consult dictionaries to ascertain a term's ordinary meaning. See

United States v. Rodgers, 466 U.S. 475, 479 (1984); McGee, 511 F.3d at 1356; Telecare Corp. v.

Leavitt, 409 F.3d 1345, 1353 (Fed. Cir. 2005). The primary definition of the noun "trauma" is "an

injury or wound violently produced." WEBSTER'S NEW TWENTIETH CENTURY DICTIONARY OF THE

ENGLISH LANGUAGE 1942 (2d ed. unabridged 1955). As an adjective, "service" means pertaining

to "the United States armed forces." Id. at 1658. Thus, the ordinary, contemporary, common

meaning–or plain meaning–of "service trauma" is an injury or wound violently produced while the
See also FUNK & WAGNALLS NEW PRACTICAL STANDARD DICTIONARY OF THE ENGLISH LANGUAGE 1194, 1387 2

(1955) (Service: "of, pertaining to, or belonging to the U.S. military or naval service"; Trauma: "[a]ny injury to the body

or mind caused by shock, violence, etc.; a wound"); THE AMERICAN COLLEGE DICTIONARY 1107, 1289 (1955) (Service:

"(a) the armed forces . . . (b) period or duration of active service"; Trauma: "a bodily injury produced by violence");

BLACK'S LAW DICTIONARY 1533, 1671 (4th ed. 1951) (Service: "employment in one of the office, departments, or

agencies of the government"; Trauma: "[a] wound; any injury to the body caused by external violence").

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injured or wounded is in the armed forces.2

We must also consider this ordinary definition within the statutory framework. Of particular

relevance here is the phrase, "due to combat wounds or other service trauma." 38 U.S.C.

§ 1712(a)(1)(C). The language is clear that a dental disability caused by combat wounds would

entitle a veteran to outpatient treatment. Further, the conjunction "or" coupled with the adjective

"other" signifies that "combat wounds" are a type of "service trauma." Thus, the statute contemplates

myriad types of service trauma that would entitle a veteran to outpatient dental treatment. In

requiring service trauma, moreover, section 1712(a)(1)(C) is more restrictive than other subparts of

the statute. For example, section 1712(a)(1)(B) provides entitlement based on any type of

noncompensable service-connected dental condition or disability and sets forth the requirements that

must be met to receive the benefit. Namely, application must be made within 90 days after discharge

or release. See 38 U.S.C. § 1712(a)(1)(B)(iii). Section 1712(a)(1)(A) allows for treatment if the

service-connected condition is compensable in degree, and provides no other restrictions.

For the purposes of this appeal, section 1712(a)(1)(C) applies because Mr. Nielson does not

have a compensable service-connected dental disability, which subpart (A) requires, nor did he meet

the requirements of subpart (B). The added restriction of subpart (C) that the disability be due to

service trauma addresses Congress's intent to limit the indefinite entitlement to dental benefits to

veterans with noncompensable service-connected dental disabilities. See Chevron U.S.A., Inc. v.

Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984) (Court "must give effect to unambiguously

expressed intent of Congress"). Only those veterans with a dental disability caused by a particular

type of event are entitled to dental benefits under section 1712(a)(1)(C). The ordinary definition

described above fits into this statutory framework.

Therefore, based on the ordinary definitions and the context of the statutory scheme, we hold

that the plain meaning of "service trauma" as used in section 1712 is an injury or wound violently

produced while the injured or wounded is in the armed forces. This meaning must be given effect.
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See Johnson and Gardner, both supra. These terms are indeed unambiguous; therefore, judicial

inquiry is complete. See Smith, supra. Accordingly, a veteran is entitled to VA outpatient dental

services and dental appliances when he has a dental condition resulting from an injury or wound

violently produced while the veteran was in the armed forces.

B. Application of Statute

With this plain meaning of service trauma, we turn to the parties' arguments regarding

whether the Board erred in finding that Mr. Nielson did not suffer a service trauma that would entitle

him to outpatient dental treatment. In order for Mr. Nielson to succeed on his claim, his

noncompensable service-connected loss of teeth must have resulted from service trauma.

Mr. Nielson asserts that he experienced two events that should be accepted as service trauma. First,

he maintains that his service aggravated his periodontal disease and constituted service trauma.

Second, he contends that the actual extraction of his teeth without anesthesia was a service trauma.

The Board considered all of Mr. Nielson's contentions and found that "the removal of

[Mr. Nielson's] teeth in service by military dentists due to periodontal infection(s) does not constitute

'service trauma.'" R. at 35. Although the Board relied on G.C. Prec. 5-97, which held that "the term

'service trauma' does not include the intended effects of treatment provided during the veteran's

military service," G.C. Prec. 5-97, the General Counsel's opinion is of no consequence because the

statute is clear on its face. The Board's reliance on the General Counsel's opinion, however, is not

prejudicial to Mr. Nielson because the General Counsel's interpretation of the statute is consistent

with the Court's holding. See 38 U.S.C. § 7261(b)(2) (Court shall take due account of rule of

prejudicial error).

Both the Board and VA General Counsel reasoned that Mr. Nielson's teeth were extracted

as treatment for his periodontal disease and not as a result of service trauma. By removing his teeth,

they contend, the treatment objectives were met. Mr. Nielson requests that this Court conclude that

"service trauma" encompasses his treatment for periodontal disease. Simply stated, the extraction

of Mr. Nielson's teeth as a result of periodontal disease is not "service trauma" as contemplated by

38 U.S.C. § 1712(a)(1)(C). The Court cannot expand the plain meaning in a manner that would

include extractions necessitated by disease. There has been no finding that Mr. Nielson's dental

condition resulted from an injury or wound violently produced in the armed services. To the extent
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that any of Mr. Nielson's other arguments suggest otherwise, his arguments are not persuasive.

IV. CONCLUSION

On consideration of the foregoing analysis and the parties' pleadings, the Court AFFIRMS

the Board's June 23, 2005, decision.