Citation Nr: 0309008 Decision Date: 05/13/03 Archive Date: 05/20/03 DOCKET NO. 98-08 620 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a skin rash to the thighs and genitals as secondary to an undiagnosed illness. 3. Entitlement to service connection for generalized joint pain as secondary to an undiagnosed illness. 4. Entitlement to a compensable evaluation for bronchitis. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Counsel INTRODUCTION The veteran had active service from May 1968 to May 1970, and from November 1990 to June 1991. The veteran also had verified active duty for training from August 1994 to December 1994, and additional periods of National Guard service in May 1970 to May 1974, February 1990 to August 1990, and from August 1990 to July 1994. FINDING OF FACT A skin rash of the thighs and genitals has been manifested to a degree of 10 percent or more as secondary to undiagnosed disability. CONCLUSION OF LAW Undiagnosed illness manifested by chronic skin rash to the thighs and genitals was incurred in active service in Southwest Asia. 38 U.S.C.A. §§ 1117, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.317 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In view of the single disposition on the merits, there is no requirement to address whether there has been compliance with the duty to assist established by the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. § 5103A (West Supp. 2001) (VCAA). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 2002); 38 C.F.R. § 3.303(a) (2002). Under 38 C.F.R. § 3.317, a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of § 3.317 may be service connected, provided that such disability became manifest either during active military, naval, or air service in the Southwest Asia Theater of Operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2006 and by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1) (2002); 66 Fed. Reg. 56,614-56,615 (Nov. 9, 2001). The Board further notes that, on December 27, 2001, the President signed into law H.R. 1291, the Veterans Education and Benefits Expansion Act of 2001, Public Law No. 107-103, 115 Stat. 976, which contains, among other things, new provisions relating to Persian Gulf War veterans. Section 202 of the new statute expands compensation availability for Persian Gulf vets to include "medically unexplained chronic multisymptom illness," such as fibromyalgia, chronic fatigue syndrome, and irritable bowel syndrome, in addition to any diagnosed illness that the Secretary determines by regulation to be service-connected. These changes in law were effective on March 1, 2002. There are no service medical records from the veteran's first period of active service. A DD Form 214 and addendum confirm the veteran's subsequent period of active service in Southwest Asia and reflects receipt of the Southwest Asia Service Medal and Kuwait Liberation Medal. He was ordered to active duty in support of Operation Desert Shield/Desert Storm in November 1990, and was credited with three months and 19 days of foreign service. The DD Form 214 also indicates the veteran's occupational specialty as an eyes, ears, nose, and throat specialist and that he was attached to the 312th Evacuation Hospital. Army National Guard physical examination in February 1990 revealed that the veteran complained of a history of skin diseases. He denied a history of high or low blood pressure or swollen/painful joints. He also denied a history of bone, joint, or other deformity. His blood pressure was 136/80. April 1991 service examination following the veteran's deployment to Southwest Asia revealed that the veteran complained of a history of skin diseases, noting an episode of remote acne, but denied any current rash, skin infection or sores. National Guard records from August 1994 to June 1995 reflect that physical examination in April 1995 revealed that the veteran continued to note a history of skin diseases (more specifically described as acne that stopped at age 25), but no history of high or low blood pressure or swollen/painful joints. His blood pressure at this time was 110/80. The veteran was treated for an insect bite on the left foot in June 1995 that involved some secondary cellulitis. There was also a diagnosis of tinea pedis. VA general medical examination in November 1995 revealed that the veteran noted his report for a protocol examination for Persian Gulf veterans. It was also noted that the veteran was a doctor's assistant while in the service and that since his discharge, he had been self-employed in building maintenance. The veteran denied ever having elevated blood pressure. He did indicate an intermittent rash on his thighs and genital area, but none currently. He also reported occasional multiple joint pain, not acute, and of short duration. Physical examination revealed no active skin disease and blood pressure of 142/78. The diagnosis included history of rash on the thighs and genital, without current rash, and history of multiple joint pains with normal examination. VA mental disorders examination in August 1998 revealed the veteran's report of a skin rash and what he initially described as fleeting joint pains. The recurrent rash was mainly in the genital area. He also described recurrent shoulder and elbow pains that lasted a couple of weeks at a time and recurred every three or four months. It was the examiner's opinion that the veteran presented a few medical symptoms that started during the Gulf experience, particularly the skin rash, cough, and joint pains. The Board finds that the veteran has complained of recurrent and undiagnosed skin rash of the thighs and genitals, that the veteran's statements regarding such skin rash are sufficient to establish the existence of this type of disorder, and that the veteran's statements as to the manifestation of this condition since service are sufficient to demonstrate a skin disorder covering an extensive area of the body, and therefore manifestation of symptoms to a degree of 10 percent or more pursuant to 38 C.F.R. § 3.317(a)(1)(i) (2002). Accordingly, giving the veteran the benefit of the doubt, the Board does find that service connection for skin rash to the thighs and genitals as secondary to undiagnosed illness is warranted. ORDER The claim for service connection for a skin rash to the thighs and genitals secondary to an undiagnosed illness is granted. REMAND With respect to the remaining issues on appeal, further development is in order to include any notification or action required by the VCAA. Accordingly, this case is remanded for the following: 1. The RO should schedule the veteran for a VA pulmonary examination to determine the nature and severity of his service-connected bronchitis. The claims folder and a copy of this remand must be made available to and reviewed by the VA examiner prior to completion of the examination report. Pulmonary function studies should be conducted and all findings must be reported in detail. With respect to the period of time since July 1995, the examiner is requested to state which of the following best describes his respiratory disability: (a) whether the veteran's bronchitis is manifested by mild impairment characterized by slight cough, no dyspnea, few rales; (b) moderate impairment characterized by considerable night or morning cough, slight dyspnea on exercise, scattered bilateral rales; (c) moderately severe impairment characterized by persistent cough at intervals throughout the day, considerable dyspnea on exercise, rales throughout chest, beginning chronic airway obstruction; (d) severe impairment with severe productive cough and dyspnea on slight exertion and pulmonary function tests indicative of severe ventilatory impairment; or (e) pronounced impairment, with copious productive cough and dyspnea at rest; pulmonary function testing showing a severe degree of chronic airway obstruction; with symptoms of associated severe emphysema or cyanosis and findings of right sided heart involvement. With respect to the period since October 7, 1996, the examiner is further requested to state whether such disability is manifested by maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episodes of acute respiratory failure, or; requires outpatient oxygen therapy. 2. The veteran should also be examined by an appropriate specialist to determine whether he has hypertension and, if so, whether it began in service or became manifest within one year after service. 3. The veteran should also be examined by an appropriate medical specialist to determine the etiology of his joint pain. The examiner should be specifically asked to opine whether the veteran has chronic disability manifested by joint pain resulting from an undiagnosed illness. 4. Thereafter, the RO should review the claims file to ensure that all of the requested development has been completed in full. In particular, the RO should ensure that the requested examination and opinions are in compliance with this remand and if they are not, the RO should implement corrective procedures. After the completion of any development deemed appropriate in addition to that requested above, the RO should readjudicate the issues remaining on appeal. 5. Thereafter, the RO should again review the record. If any benefit sought on appeal is not granted to the veteran's satisfaction, he and his representative should be furnished with a supplemental statement of the case, and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, Veterans' Benefits Administration (VBA)'s Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. ______________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.