Citation Nr: 21063121 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 17-12 103 DATE: October 13, 2021 ORDER Service connection for a dental disability claimed as broken bottom tooth, right side of mouth is denied. REMANDED Entitlement to service connection for digestive disability to include gastrointestinal remanded. Entitlement to service connection for respiratory disability to include bronchitis and pneumonia is remanded. Entitlement to service connection for right shoulder disability is remanded. Entitlement to service connection for back disability is remanded. Entitlement to service connection for neck disability is remanded. Entitlement to service connection for herniated sphincter of diaphragm is remanded. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to an initial rating in excess of 10 percent for dermatitis is remanded. Entitlement to an initial rating in excess of 10 percent for headaches is remanded. Entitlement to a compensable rating for traumatic brain injury (TBI) is remanded. FINDING OF FACT The Veteran has not demonstrated a dental disability for which compensation is payable CONCLUSION OF LAW The criteria for service connection for a dental disability, for compensation purposes, have not been met. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150, 17.161. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from September 2004 to September 2008 with service in Iraq. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of July 2014, February 2015, and April 2017 issued by the Agency of Original Jurisdiction (AOJ). In June 2021, the Veteran testified at a Virtual Hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is associated with the record. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Entitlement to service connection for a dental disability claimed as broken bottom tooth, right side of mouth. For the reasons explained below, the Board finds that service connection is not warranted. The Veteran filed a claim for broken bottom tooth, right side of mouth, which was denied by rating action of February 2015. Other than his general application for service connection, the Veteran has not advanced any specific argument or presented testimony regarding this claim. Dental disabilities are treated differently than medical disabilities in the VA benefits system. 38 U.S.C. § 1712; 38 C.F.R. § 3.381. 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 38 C.F.R. § 17.161. As such, service connection for compensation purposes is not available for a dental condition other than one resulting from dental trauma. Dental disabilities that may be awarded compensable disability ratings are set forth under 38 C.F.R. § 4.150. These disabilities include chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss of the mandible, nonunion or malunion of the mandible, limited temporomandibular motion, loss of the ramus, loss of the condyloid or coronoid processes, loss of the hard palate, loss of teeth due to the loss of substance of the body of the maxilla or mandible and where the lost masticatory surface cannot be restored by suitable prosthesis, when the bone loss is a result of trauma or disease but not the result of periodontal disease. 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. With respect to the tooth claim currently before the Board, the evidence does not show a current diagnosed dental disability. The Board observes that the Veteran has not requested entitlement to VA outpatient dental treatment. The United States Court of Appeals for Veterans Claims (Court) specifically has held that a claim for service connection for a dental disorder is also a claim for VA outpatient dental treatment. Mays v. Brown, 5 Vet. App. 302 (1993). Based on the record, however, the Board finds that the issue of entitlement to outpatient dental treatment is not currently in appellate status. Considering the evidence, the Board finds that the Veteran does not have a compensable dental disability and he has not submitted evidence showing that he suffers from any of the disabilities included under 38 C.F.R. § 4.150. Moreover, the record does not indicate and the Veteran has not stated that he suffered chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss of the mandible, nonunion or malunion of the mandible, limited temporomandibular motion, loss of the ramus, loss of the condyloid or coronoid processes, loss of the hard palate, loss of teeth due to the loss of substance of the body of the maxilla or mandible and where the lost masticatory surface could not be restored by suitable prosthesis, when the bone loss is a result of trauma or disease but not the result of periodontal disease, loss of the maxilla, or malunion or nonunion of the maxilla. See 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. Therefore, the criteria for service connection for a compensable dental disability have not been met. According, the claim must be denied. REASONS FOR REMAND Remand of the claims are required for the following reasons. 2. Entitlement to service connection for digestive disability to include gastrointestinal. 3. Entitlement to service connection for respiratory disability to include bronchitis and pneumonia. At his hearing, for digestive and respiratory issues, to include gastrointestinal, bronchitis, and pneumonia, the Veteran asserted entitlement to service connection based on the presumption in favor of Persian Gulf War veterans under 38 U.S.C. § 1117; 38 C.F.R. § 3.317. See Hearing Transcript at 2. The Board acknowledges that the Veteran has qualifying service in the Southwest Asia theater of operations (Iraq). For veterans who served in the Southwest Asia theater of operations during the Persian Gulf War, service connection may also be established for chronic disability that cannot be attributed to a known clinical diagnosis (undiagnosed illness) or for a medically unexplained chronic multisymptom illness (e.g., chronic fatigue syndrome, fibromyalgia, or irritable bowel syndrome). 38 C.F.R. § 3.317. A claimant's signs or symptoms need not be shown by medical evidence; however, some objective indications of disability are required. 38 C.F.R. § 3.317(a). Objective indications of chronic disability include both signs, in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). At his hearing, the Veteran stated that his current digestive and respiratory signs and symptoms may be manifestations of an "undiagnosed condition" or "one where the etiology is either not known or not fully known". See Hearing Transcript at 20. Additionally, at his hearing, the Veteran stated that his digestive and breathing problems began in service after experiencing a chlorine attack in 2005 while stationed in Fallujah and having exposure to nitric acid in 2007. See Hearing Transcript, pp. 20-22. The AOJ should take appropriate action to verify the Veteran's described in service attacks, such as the 2005 chlorine attack in Fallujah, which would likely have exposed him to such chemicals as asserted. Next, although the record shows VA contract opinions of August 2018, the negative direct service opinions do not take into consideration the Veteran's lay testimony and described history, in particular digestive and respiratory symptoms in service after the chlorine attack. Accordingly, to ensure that the Veteran's claim is afforded full consideration, the Board concludes that remand is warranted for VA examinations and to obtain a medical opinion that reflects consideration of the Veteran's contentions. 4. Entitlement to service connection for right shoulder disability. The record shows a VA contract medical opinion of August 2018 where the examiner rendered a favorable nexus for the left shoulder, but found a nexus was not established for the right shoulder. See Shoulder Conditions Disability Benefits Questionnaire (DBQ) and Medical Opinion dated August 2018. The examiner found the veteran's service treatment records "silent for the claimed condition" and that there was no "mention of right shoulder condition during separation exam". On this basis, the examiner found "it less likely than not the veteran incurred a right shoulder condition during active service." Id. However, the above opinion for the right shoulder is inadequate as the examiner's conclusion is based on lack of documentation in separation exam and does not take into consideration the Veteran's lay reports of symptoms and history after service. In particular, at his hearing the Veteran pointed out that the record shows a May 26, 2011 VA exam documenting "popping and impingement of the right shoulder" which the Veteran states was the same "popping" symptom he experienced he while in service. See Hearing Transcript at 17. Indeed, the record shows a May 2011 VA general exam where the examiner at the time noted, "[o]n range of motion the right shoulder had an audible popping sound with internal rotation." However, the examiner also indicated "no objective evidence of a shoulder issue at this time". See VA General Examination dated May 2011. Given the foregoing, the Board finds that remand is warranted to obtain an addendum opinion that takes into consideration the Veteran's lay testimony and contentions. 5. Entitlement to service connection for neck disability. 6. Entitlement to service connection for back disability. The record shows that the Veteran was afforded VA examinations for his neck and back in July 2017 with both examinations conducted by the same examiner. In the remarks section of the examination report, the VA examiner rendered the same opinion for disabilities stating, "even though veteran had some complaints about his neck [and back] while in service, this seem to resolve without any lasting issues as nothing was listed in his separation exam about this being an issue. Given this, less than likely related to his time in the service." Similar to the above, the July 2017 opinion is inadequate as the examiner's conclusion is based on lack of documentation in separation exam and does not take into consideration the Veteran's lay reports of symptoms and history after service. See Dalton v. Peake, 21 Vet. App. 23 (2007) (holding that a medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history). Given the foregoing, the Board finds that remand is warranted to obtain etiological opinions that sufficiently addresses the Veteran's contentions, reported history and chronicity of symptomatology. 7. Entitlement to service connection for herniated sphincter of diaphragm. By correspondence dated August 2016, the Veteran raised a secondary theory of entitlement for his claimed herniated sphincter of diaphragm. See Veteran's Supplemental Claim dated August 2016. This claim was denied by rating action of April 2017. The Board observes that the Veteran has not been afforded a VA examination for his claimed condition and there is no etiological medical opinion of record taking into consideration the Veteran's lay statements and reported history. Thus, on remand further development is warranted. 8. Entitlement to an initial rating in excess of 10 percent for headaches. By rating action of April 2017, the AOJ continued the currently assigned 10 percent evaluation. The Veteran continues to seek higher evaluations. He was last afforded a VA examination in September 2016. The Board observes that the last examination from 2016 does not accurately reflect the current severity and manifestations of his migraine headaches. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a veteran was entitled to a new examination after a two year period between the last VA examination and the veteran's contention that his disability had increased in severity). Thus, reexamination is necessary. 9. Entitlement to a rating in excess of 10 percent for TBI. By rating action of April 2017, the Veteran's claim for increased rating for TBI was denied, his currently assigned 0 percent rating was continued. However, the record shows that he is in receipt of a separate 10 percent evaluation for residuals of TBI including blurry vision and hot/cold flashes. The Veteran continues to seek compensable rating for his TBI. The Veteran was last afforded a VA examination in November 2016. As this examination does not accurately reflect the current severity and manifestations of his TBI including residuals therein, the Board notes that reexamination is necessary. 10. Entitlement to a rating in excess of 70 percent for PTSD. By rating action of April 2017, the AOJ proposed a reduction to 50 percent disabling. However, by rating action of September 2017, the Veteran's currently assigned 70 percent evaluation was continued. The Veteran continues to seek higher evaluations. The record shows he was last afforded a VA examination for PTSD in July 2017. The Board observes that the last examination from 2017 does not accurately reflect the current severity and manifestations of his PTSD. Thus, reexamination is necessary. 11. Entitlement to an initial rating in excess of 10 percent for dermatitis. By rating action of April 2017, service connection for atopic dermatitis (claimed as skin rashes, yeast infection due to nitric acid exposure) was granted with an initial rating of 10 percent under Diagnostic Code 7806, effective August 25, 2016. The Veteran disagrees with the assigned rating and seeks higher evaluation. The Veteran was last afforded VA examination in July 2017. However, since the last examination, the record shows VA treatment records of June 2021 where the Veteran was prescribed topical medication for treatment of flares, such as use of "Clobetasol and Triamcinolone" for his hands. Specific to the use of topical treatment, the Board seeks guidance from pertinent caselaw. In Johnson v. Shulkin, 862 F.3d 1351, 1354 (Fed. Cir. 2017), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the use of topical corticosteroids did not automatically equate to systemic therapy because the rating criteria under 38 C.F.R. § 4.118, Diagnostic Code 7806 distinguished between systemic and topical therapy. The Federal Circuit went on to explain that "systemic therapy means 'treatment pertaining to or affecting the body as a whole,' whereas topical therapy means 'treatment pertaining to particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied.'" Id. at 1355. The Federal Circuit also held that a topical corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large enough scale such that it affected the body as a whole. Id. Thus, the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances. In Burton v. Wilkie, 30 Vet. App. 286, 291 (2018), the Court of Appeals for Veterans Claims (the Court) addressed "systemic therapy" in the context of topical treatment. The Court held that the method by which the treatment works is another factual circumstance for consideration when determining whether a topical treatment can be deemed systemic therapy. Id. at 292. The Court provided the example that a topical treatment may affect the body as a whole if it circulates through the bloodstream, and would not matter where the topical treatment was applied on the body, as the entire body would be involved in treatment. Id. Additionally, the Court held that a finding of systemic therapy is not limited to the use of corticosteroids or immunosuppressive drugs. Rather, VA must determine whether any given treatment is "like" a corticosteroid or other immunosuppressive drug in that it affects the body as a whole. Id. at 295. Thus, given the guidance in Johnson and Burton, for purposes of evaluating the Veteran's skin disability under Diagnostic Code 7806, an opinion is needed to clarify whether the identified topical corticosteroid medications (Triamcinolone) may be considered systemic therapy. Further, a reexamination is necessary to help estimate the total body area and exposed area affected during flare ups. The matters are REMANDED for the following action: 1. Contact appropriate sources and attempt to verify the asserted chlorine attack in 2005 and nitric acid exposure in 2007 while stationed in Iraq. 2. Digestive and Respiratory Schedule the Veteran for an appropriate VA examination with an appropriate medical professional to determine the nature and etiology of his claimed digestive and respiratory to include gastrointestinal, bronchitis, and pneumonia as manifestations of an undiagnosed illness. The Veteran's claims file, to include a copy of the remand, must be made available to the examiner in conjunction with the examination along with any other information the medical professional deems pertinent. A note that it was reviewed should be included in the opinion. Following examination of the Veteran, the examiner is to provide an opinion addressing the following: a) Whether the Veteran has a diagnosed digestive and respiratory disability to include gastrointestinal, bronchitis, and pneumonia; the examiner must state whether the Veteran's symptoms are attributable to a known clinical diagnosis or an undiagnosed illness. b) For each such diagnosed condition, the examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the claimed condition had onset in service or within one year of separation; or is directly linked to the Veteran's time in active duty. 3. Right Shoulder Obtain an addendum opinion from a qualified medical professional to determine the nature and etiology of the Veteran's claimed right shoulder disability. The electronic claims file should be made accessible to the examiner along with any other information the medical professional deems pertinent. If the reviewer determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. Based on the review of the record, the examiner should provide an addendum opinion on the following: a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's claimed right shoulder disability began during active service or is causally related to service? b) Is at least as likely as not (a 50 percent or greater probability) that the Veteran's right shoulder disability manifested within one year of his service discharge and, if so, describe the manifestations. In rendering the opinion, the examiner is asked to consider medical records (specifically, the May 2011 VA General Examination documenting "popping" and impingement of the right shoulder) and lay evidence of record (Veteran's June 2021 Hearing testimony). A complete rationale for all opinions is requested. 4. Neck and Back Schedule the Veteran for a VA examination with an appropriate medical professional to determine the nature and etiology of his claimed neck and back disability. The electronic claims file should be made accessible to the examiner along with any other information the medical professional deems pertinent. Following examination of the Veteran, the examiner is to provide an opinion on the following: a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's claimed neck and back disability began during active service or is causally related to service? b) Is at least as likely as not (a 50 percent or greater probability) that the Veteran's neck and back disability manifested within one year of his service discharge and, if so, describe the manifestations. A complete rationale for all findings and conclusions is requested. 5. Herniated Sphincter Diaphragm Obtain a medical opinion from a qualified medical professional to determine the nature and etiology of the Veteran's claimed herniated sphincter diaphragm. The electronic claims file should be made accessible to the examiner along with any other information the medical professional deems pertinent. If the reviewer determines that a medical examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. Based on the review of the record, the examiner should provide a medical opinion on the following: a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's herniated sphincter diaphragm was caused by his service-connected PTSD? b) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's herniated sphincter diaphragm was aggravated by his service-connected PTSD? 6. Headaches, TBI, PTSD Schedule the Veteran for VA examinations to determine the current severity of his service-connected headaches, TBI, and PTSD. The electronic claims file should be accessible to the examiner in connection with the examination. Any indicated tests and studies must be accomplished. The examiner must consider all signs and symptoms necessary for evaluating the disability under the rating criteria as indicated by the relevant Disability Benefits Questionnaire (DBQ). An explanation for all opinions expressed must be provided. 7. Skin Disability Schedule the Veteran for a VA examination to determine the current nature, extent and severity of his skin disability (atopic dermatitis). All required tests should be performed. The electronic claims file should be accessible to the examiner in connection with the examination. The examiner must consider all signs and symptoms necessary for evaluating the disability under the rating criteria as indicated by the relevant Disability Benefits Questionnaire (DBQ). An explanation for all opinions expressed must be provided. a) Identify any medication used to treat the Veteran's service-connected atopic dermatitis. For each prescribed medication (such as Triamcinolone), state whether it is considered topical therapy or systemic therapy? The term "systemic therapy" means treatment pertaining to or affecting the body as a whole; and "topical therapy" means "treatment pertaining to particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied." See Johnson v. Shulkin, 862 F.3d 1351, 1354 (Fed. Cir. 2017). b) For each identified medication, if topical therapy, does it affect the body as a whole in treating skin symptoms? Or is it applied by direct contact with the skin, localized treatment of a dermatological condition? The examiner should also address whether the Veteran's use of topical medications could be considered systemic therapy by explaining the method by which the topical treatment works. For example, a topical treatment may affect the body as a whole if it circulates through the bloodstream. See Burton v. Wilkie, 30 Vet. App. 286 (2018). c) For each identified medication, specifically address whether it is "like" a corticosteroid or other immunosuppressive drug to constitute systemic therapy in that it affects the body as a whole. d) Please estimate the percentage of the entire body and exposed areas that are affected by the skin disability during flare ups. In rendering the requested opinion, the VA examiner should consider medical and lay evidence of skin disability in its active state. See 38 C.F.R. § 4.118, Diagnostic Code 7806.] KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A., Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.