Citation Nr: 21026850 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 11-24 738 DATE: May 4, 2021 ORDER Entitlement to service connection for irritable bowel syndrome (IBS), also claimed as indigestion and stomach pain, is granted. Entitlement to service connection for a disability manifested by blurry vision, including as secondary to a service-connected disability, is denied. Entitlement to service connection for periodontal disease is denied. REMANDED Entitlement to service connection for a noncompensable dental disorder for the purpose of obtaining VA outpatient dental treatment under 38 C.F.R. § 17.161 is remanded. FINDINGS OF FACT 1. The Veteran experienced indigestion and stomach pain related to IBS since her separation from service. 2. At no time during the current appeal period has the Veteran been diagnosed with a disability manifested by blurry vision related to her active service, or as secondary to any of her current service-connected disabilities. 3. The Veteran does not have a current periodontal disease disability and has not demonstrated any other dental disability for which compensation is payable. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for IBS have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2019). 2. The criteria for entitlement to service connection for a disability manifested by blurry vision have not been met. 38 U.S.C. § 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 3. The criteria for entitlement to service connection for a periodontal disease or any other dental disorder for which compensation purposes have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A; 38 C.F.R. §§ 3.303, 3.381, 4.150. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1989 to June 1999. This matter returns to the Board of Veterans' Appeals (Board) from a previous September 2020 Board decision that remanded the current claims for further evidentiary development. Additionally, as there is no evidence of a new appointment of counsel, the Veteran's claim will proceed as one of a "self-represented" claimant. 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 military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection can also be established through application of a statutory presumption for chronic diseases including arthritis when manifested to a compensable degree within a year of separation from service. 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is not manifested to a compensable degree within a year of separation of service, then, generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303 (b). Continuity of symptomatology may be established if a claimant can demonstrate the following: (1) that a condition was "noted" during service; (2) that there is evidence of post-service continuity of the same symptomatology; and (3) that there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310 (a). Secondary service connection may also be established for a disability which is aggravated by a service-connected disability. In order to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). IBS (also claimed as indigestion and stomach pain) The Veteran seeks service connection for IBS. The most recent VA examination in December 2020 found insufficient evidence to warrant or confirm a diagnosis of an acute or chronic IBS condition or its residuals. However, the Board finds that the medical evidence of record shows the Veteran has a current diagnosis of IBS. In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the United States Court of Appeals for Veterans Claims (Court) held that the requirement of the existence of a current disability is satisfied when a veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. Here, the Board notes that a May 2012 VA medical report indicated an impression for IBS. Likewise, an October 2014 VA primary care note indicated the Veteran was continuing medication for an IBS diagnosis. As such, the Board finds that the Veteran has IBS for VA purposes during the pendency of the current claim and thus, the current disability element is established. Therefore, the Board turns its attention to whether there is a possible connection between the current IBS disability and her active military service. The Veteran's service treatment records (STRs) show complaints and treatments for stomach and abdominal pain, cramping, gas pains, change in bowel habits, and constipation during active service. Further, a June 1998 medical board evaluation noted a history of gastroesophageal reflux disease-like symptoms but did not provide any specific diagnosis. Likewise, a November 1998 and February 1999 medical report indicate an IBS diagnosis. Post-service, a September 2011 medical record indicates a diagnosis and treatment for IBS. A February 2018 VA examination confirmed the September 2011 diagnosis. The February 2018 examiner noted the Veteran's reports of onset of symptoms in 1997 when she had complaints of constipation. She also reported that her condition has remained the same since service with additional symptoms of hemorrhoids, bloating, and flatulence. However, the examiner opined that the Veteran's indigestion and stomach pain that occurred during service is less likely than not associated with her IBS condition due to the lapse of time seeking medical treatment for the condition and since no diagnosis of IBS was noted in the STRs. The Veteran underwent additional VA examinations in June 2020 and December 2020. In both examinations, the examiners found no diagnosis of IBS and thus, provided negative nexus opinions between the Veteran's IBS and active service. The Veteran reports, and the treatment records confirm, that she has experienced stomach pain and symptoms related to IBS since service. The February 2018 VA examination noted that her symptoms onset in service and have continued since. As such, the Board finds that the Veteran has competently described continued stomach pain since active service and onward. She is competent to report that she experienced symptoms of stomach pain during this period. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board, thus, accords probative weight to the Veteran's competent and credible statements. The Board acknowledges that a February 2018, June 2020, and December 2020 VA examinations resulted in an unfavorable opinion as to the nexus between the Veteran's in-service stomach pain and post-service IBS diagnosis. While the Board cannot ignore or disregard the VA examiner's medical conclusions, Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not compelled to accept a medical opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). Here, while the February 2018 VA examiner provided a negative nexus opinion, he did not consider the Veteran's competent lay statements regarding her symptoms of indigestion and stomach pain. For this reason, the negative nexus opinion is not probative, as it did not consider the Veteran's probative factual assertions. Likewise, the June 2020 and December 2020 VA examinations found no diagnosis of IBS however, the Board has acknowledged that the Veteran has a current diagnosis of IBS for VA purposes. Therefore, the June 2020 and December 2020 VA examinations are not probative. Given the Veteran's credible reports of continuity of symptoms, evidence is at least in equipoise regarding whether her current indigestion and stomach pain manifestations have been present since service. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. Thus, service connection for IBS is warranted. Blurry Vision The Veteran seeks service connection for a disability manifested by blurry vision. Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. 38 U.S.C. § 1110; Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Current means near the time a claim is filed or at any time during its pendency. McClain v. Nicholson, 21 Vet. App. 319 (2007). Disability "refers to the functional impairment of earning capacity." Saunders v. Wilkie, No. 886 F.3d. 1356 (Fed. Cir. 2018) (holding that pain can constitute a current disability, even without an underlying diagnosis, if it causes sufficient functional impairment). Here, the Veteran's STRs show complaints of blurry vision associated with complaints of headaches in April 1995. Subsequent examinations in December 1991, June 1998, and September 1998 show the Veteran's visual acuity was 20/20 uncorrected, bilaterally. At a February 2018 VA headaches examination, the Veteran reported blurry vision as a symptom related to her service-connected headaches. The Veteran underwent a VA eye conditions examination in August 2020. The examiner provided a negative opinion regarding the relationship between the Veteran's claimed blurry vision and service, stating that her claimed blurry vision is primarily due to her refractive error. The examiner noted that the Veteran had incipient age-related cortical cataracts that, at the time, did not affect her vision. Instead, the examiner stated that the Veteran's mild refractive error was corrected to 20/20 vision in each eye. As such, her corrected acuity did not reflect blurry vision. Additionally, the examiner opined that the Veteran's blurry vision was not proximately due to or a result of any of her service-connected conditions. The examiner found that both her dry eye syndrome and cortical cataracts were both age related findings and unrelated to her service-connected migraine headaches or fibromyalgia. The Veteran underwent another VA eye examination in October 2020. The Veteran reported the onset of her blurry vision condition in 1991 following the birth of her first child. At that time, the Veteran stated that she started to develop migraine headaches as well as dry eyes; her blurry vision typically precedes the onset of her headaches. During examination, the Veteran reported current symptoms of blurry vision and seeing colors prior to getting headaches. The examiner reported that any complaint of "habitual" blurry vision was due to an uncorrected refractive error and not due to migraine headaches. The examiner noted that although the Veteran's visual acuity was worsened since separation from service, she is presently able to see 20/20 in each eye with her proper corrective eyeglasses. Further, the examiner opined that any transient blurry vision from the visual aura associated with a migraine event would fall under the same diagnostic category as the migraine. Additionally, the examiner found that her eye conditions had no functional impact and did not impact her ability to work. The Veteran underwent another VA examination in January 2021. The examiner opined that the Veteran's blurry vision condition was not caused by an in-service injury or due to the Veteran's service-connected condition of migraines. The examiner instead found that the Veteran's blurred vision does not represent a disability. Instead, it has an intermittent presentation that is associated with a migraine event. The examiner noted that visual disturbance before and during a migraine event is a common occurrence. Further, in absence of the migraine, the Veteran had a best-corrected visual acuity of 20/20 right and left eyes at both near and distant. The medical evidence illustrates that the Veteran's blurry vision is a symptom of her migraine disability and is not a separate diagnosable disability. The medical evidence does not show, nor does the Veteran claim, that her blurry vision results in any sort of functional impairment that is not already compensated by her service-connected migraine disability. Saunders v. Wilkie, No. 886 F.3d. 1356 (Fed. Cir. 2018). As such, because service connection may only be granted for a current disability and the evidence does not show a separate diagnosed disability or a condition causing sufficient functional impairment, the claim for service connection for blurry vision is denied. Periodontal disease The Veteran seeks service connection for compensation for a dental disability. In VA's benefits system, dental disabilities are treated differently from medical disabilities. Disability compensation may be provided for certain specified types of service-connected dental disorders. For other types of service-connected disorders, the claimant may receive treatment only, but not compensation. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150, 17.161. Compensation for treatment purposes is discussed in the Remand portion below. Dental disabilities which 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. 38 C.F.R. § 4.150. Compensation is also available for loss of teeth only if such is due to loss of substance of body of maxilla or mandible. Simmington v. West, 11 Vet. App. 41 (1998). For loss of the teeth, bone loss through trauma or disease, such as osteomyelitis, must be shown for compensable purposes. The loss of the alveolar process as a result of periodontal disease is not considered disabling. 38 C.F.R. § 4.150, Diagnostic Code 9913. In addition, to be compensable, the lost masticatory surface for any tooth cannot be restorable by suitable prosthesis. Id. The Veteran has not alleged that she suffers from 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, or loss of the hard palate. Rather, the earliest indication of a dental defect or disease is from a June 1998 medical evaluation board examination in which the Veteran reported a history of severe tooth or gum trouble and the examiner noted to be a history of periodontal disease. At a February 2018 VA examination, the Veteran reported the onset of her dental condition in 1993 and stated that a 2000-2004 private orthodontist suggested the possibility of periodontal disease. The examiner indicated that at the time of examination, the Veteran did not have an oral or dental condition that could be diagnosed. The VA examiner acknowledged thorough review of the Veteran's claims file and found no evidence supporting her claim. The examination also did not support periodontal disease, however, the examiner noted that in the area of the Veteran's crowns, her gums were compromised by the crowns which caused bleeding gums. The examiner stated that bleeding around the gum near her crowns is due to gingivitis, which was not diagnosable for the purposes of the examination. The Veteran has not provided, nor does the record contain, any probative evidence that confirms a current diagnosis of periodontal disease. Accordingly, as the Veteran has not been diagnosed with a dental disability for which service connection may be granted, the claim for service connection periodontal disease must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS FOR REMAND Service connection for a noncompensable dental disorder for the purpose of obtaining VA outpatient dental treatment under 38 C.F.R. § 17.161 The Board notes that a claim for service connection for a dental condition is also considered a claim for VA outpatient dental treatment. Mays v. Brown, 5 Vet. App. 302, 306 (1993). To that effect, the Board notes that the claim for VA outpatient dental treatment has not been addressed. 38 C.F.R. § 3.381 clarifies that VBA will adjudicate a claim for service connection of a dental disorder for treatment purposes after VHA determines that a veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161 and asks that VBA make a decision on relevant questions. 38 C.F.R. § 3.381 (a). It does not appear that VHA made a decision regarding the Veteran's eligibility for dental treatment. Thus, the Board finds that a remand is necessary so that VHA may adjudicate the issue of service connection for dental treatment purposes in the first instance. This matter is REMANDED for the following action: 1. Provide VCAA notice for the issue of service connection for a noncompensable dental disorder for the purpose of obtaining VA outpatient dental treatment under 38 C.F.R. § 17.161. (Continued on the next page) 2. After obtaining any additional evidence pertinent to the issue on appeal, as well as developing the claim in any matter deemed appropriate, VHA should adjudicate Class eligibility in the first instance under 38 C.F.R. § 3.381. See 38 C.F.R. § 17.161. Roya Bahrami Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.R. Bobb, Associate 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.