Citation Nr: 1225317	
Decision Date: 07/20/12    Archive Date: 07/30/12

DOCKET NO.  98-15 107	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1.  Whether new and material evidence has been received which is sufficient to reopen a previously-denied claim of entitlement to service connection for acne.
 
2.  Entitlement to service connection for acne.

3.  Entitlement to service connection for an eye disorder, to include as due to an undiagnosed illness and in-service use of Accutane.

4.  Entitlement to service connection for a gastrointestinal disorder, to include as due to an undiagnosed illness and in-service use of Accutane.

5.  Entitlement to service connection for a cardiovascular disorder, to include as due to an undiagnosed illness and in-service use of Accutane.

6.  Entitlement to service connection for migraine headaches, to include as due to an undiagnosed illness and in-service use of Accutane.

7.  Entitlement to service connection for an acquired psychiatric disorder and a sleep disorder, other than posttraumatic stress disorder (PTSD) to include as due to an undiagnosed illness and in-service use of Accutane.

8.  Entitlement to service connection for a smell disorder, to include as due to an undiagnosed illness and in-service use of Accutane.

9.  Entitlement to service connection for a disorder manifested by multiple joint and muscle pain, to include as due to an undiagnosed illness and in-service use of Accutane.

10.  Entitlement to service connection for a skin disorder other than acne and dermatitis of the hands, to include as due to an undiagnosed illness and in-service use of Accutane.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

L. Jeng, Counsel


INTRODUCTION

This case comes before the Board of Veterans Appeals (the Board) on appeal from a September 1997 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.


Procedural history

The Veteran served on active duty in the United States Army from May 1988 to May 1992.  Service in Southwest Asia during the Persian Gulf War is indicated by the evidence of record.

In the above-referenced September 1997 rating decision, the RO denied the Veteran's claims of entitlement to service connection for: cardiomyopathy; dry eyes with conjunctivitis; migraine headaches; gastroenteritis; adjustment disorder with anxious mood and sleep disorder; cystic acne and eczematous areas of the hands and cystic lesions of the left posterior neck and upper arms; a smelling disorder; and joint and muscle pain.  The Veteran initiated an appeal of that decision, which was perfected with the timely submission of his substantive appeal (VA Form 9) in September 1998.

In July 1999, the Board denied all of the Veteran's claims except for the claim of entitlement to service connection for a cardiovascular disorder, which was remanded for additional development.  The Veteran duly appealed the Board's January decision as to the issues, which were denied to the United States Court of Appeals for Veterans Claims (Court).  In November 2000, counsel for the Veteran and the Secretary of VA filed a Joint Motion for Remand for readjudication of the Veteran's claims in light of the then very recently passed Veterans Claims Assistance Act of 2000 (VCAA).  In an order dated in December 2000, pursuant to the Joint Motion for Remand, the Court vacated and remanded the portion of the Board's decision which denied all claims other than that for entitlement to service connection for a cardiovascular disorder.

In January 2004, the Board remanded these matters for further development.  Then, in November 2006, the Board requested that an independent medical expert (IME) provide a medical opinion on an unresolved and complex medical matter in the case.  In February 2007, the Board received the requested IME opinion.  The Board requested an addendum opinion from the same IME in September 2007, which was received at the Board in October 2007.  

In February 2008 and April 2010, the Board remanded these matters for further development, which has been completed and the case has been returned to the Board for appellate consideration. 

The issues of entitlement to service connection for acne, an eye disorder, a gastrointestinal disorder, migraine headaches, an acquired psychiatric disorder and a sleep disorder,  a smell disorder, and a disorder manifested by multiple joint and muscle pain are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  In a January 1993 rating decision, the RO denied service connection for acne; the Veteran did not appeal that decision within one year of being notified by the RO. 

2.  Evidence received since the January 1993 rating decision denying service connection for acne bears directly and substantially upon the specific matter under consideration, is neither cumulative nor redundant, and, by itself or in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim for service connection for acne. 

3.  The evidence of record demonstrates that the Veteran has a current diagnosis of cardiomyopathy. 

4.  The evidence of record does not support a finding that a relationship exists between the Veteran's cardiovascular disorder and his active duty service. 

5.  The evidence of record demonstrates that the Veteran has a current diagnosis of various skin disorders, to include cysts and tinea pedis.

6.  The evidence of record does not support a finding that a relationship exists between the Veteran's skin disorder and his active duty service. 


CONCLUSIONS OF LAW

1.  The January 1993 rating decision denying service connection for acne is final.  38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1992). 

2.  New and material evidence has been received to reopen the claim for service connection for acne.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (as in effect prior to August 29, 2001).

3.  The Veteran's cardiovascular disorder is not due to an undiagnosed illness.  38 U.S.C.A. §§ 1110, 1112, 1117, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2011). 

4.  The Veteran's cardiovascular disorder was not incurred in or aggravated by his active duty military service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2011). 

5.  The Veteran's skin disorder, other than acne and dermatitis of the hands, is not due to an undiagnosed illness.  38 U.S.C.A. §§ 1110, 1112, 1117, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2011). 

4.  The Veteran's skin disorder, other than acne and dermatitis of the hands, was not incurred in or aggravated by his active duty military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2011). 



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Stegall Considerations

In July 1999, the Board remanded the Veteran's claim for a cardiovascular disorder, specifically instructing the RO to request from the Veteran information regarding physicians who treated him for his cardiovascular or infectious disease since discharge, including Dr. F.J. Forstall and obtain these records, provide the Veteran an examination for his disability, and readjudicate the claim.  Subsequently, records from Dr. Forstall and other health care providers, which the Veteran identified, were obtained and associated with the claims folder.  The Veteran was then afforded examinations for his heart in December 2000 and August 2004, and an IME was obtained in February 2007.  His claim was then readjudicated in a May 2009 supplemental statement of the case (SSOC).  

In January 2004, the Board remanded all of the claims currently on appeal for further evidentiary and procedural development.  In May 2006, the VA Appeals Management Center (AMC) issued an SSOC, which continued to deny the Veteran's claims. 

In February 2008, the Board instructed the Veterans Benefits Administration (VBA) to send the Veteran a corrective VCAA notice which included the evidentiary requirements as to claims involving new and material evidence pursuant to Kent v. Nicholson, 20 Vet. App. 1 (2006), to obtain any additional medical records identified by the Veteran, and readjudicate the claims.  Thereafter, an April 2008 VCAA letter complying with the Board's remand instructions was sent to the Veteran, additional records were associated with the claims folder to the extent possible, and the claims were readjudicated in a May 2009 SSOC.  

Most recently in April 2010, the Board again remanded this matter to obtain records from the Social Security Administration (SSA) and to readjudicate the claims.  SSA records were associated with the claims folder and the claims were readjudicated in an April 2011 SSOC.  Thus, all of the Board's remand instructions over the years have been complied with.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance).

Duties to Notify and Assist

In correspondence dated in December 2004, May 2006, and April 2008, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2011).  Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide.  He was also notified the Veteran of the process by which disability ratings and effective dates are established.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  The claims were subsequently readjudicated in a January 2012 supplemental statement of the case.  See Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (noting that VA cured its failure to afford statutory notice to the claimant prior to an initial rating decision by issuing a notification letter after the decision, readjudicating the claim, and notifying the claimant of such readjudication in the statement of the case). 

In Kent v. Nicholson, 20 Vet. App. 1, 10 (2006), the Court held that VA must notify a claimant of the evidence and information that is necessary to reopen a claim, and VA must notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit sought by the claimant.  The duty to notify requires, in the context of a claim to reopen, the Secretary to look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial.  

Here, however, the Board is reopening the Veteran's claim for service connection for an acne and any defect in the notice letter concerning the evidence needed to reopen the claim cannot be prejudicial to him.  Thus, the Board concludes that the notice requirements as they pertain to the claim have been complied with, and that a defect, if any, in providing notice and assistance to the Veteran was at worst harmless error in that it did not affect the essential fairness of the adjudication.  Mayfield v. Nicholson, 19 Vet. App. 103, 115 (2005); Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004); Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92.  

VA has done everything reasonably possible to assist the Veteran with respect to his  claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2011).  Service treatment records have been associated with the claims file.  All identified and available treatment records have been secured.  As the Board will discuss in detail in its analysis below, the Veteran was provided with VA examinations throughout the appeal period.  The reports of these examinations reflect that the examiners reviewed the Veteran's past medical history, recorded her current complaints, conducted appropriate evaluations of the Veteran, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record.  The Board, therefore, concludes that these examination reports are adequate for purposes of rendering a decision in the instant appeal.  See 38 CF.R. § 4.2 (2011); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Veteran and his representative have not contended otherwise.

The Board additionally observes that all appropriate due process concerns have been satisfied.  See 38 C.F.R. § 3.103 (2011).  The Veteran has been accorded the opportunity to present evidence and argument in support of his claims and he has declined to do so.  Therefore, the duties to notify and assist have been met.  

New and Material Claim

In a January 1993 rating decision, the RO denied the Veteran's claim of entitlement to service connection for acne.   The Veteran did not appeal that decision, and it became final.  38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1992). 

Since the January 1993 rating decision is final, the Veteran's request to reopen the service connection claim for acne may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication.  See 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156 (2011); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). 

During the pendency of this appeal, the regulation regarding new and material evidence was amended.  38 C.F.R. § 3.156(a) (2011).  This amendment applies only to claims to reopen a finally decided claim received on or after August 29, 2001. The Veteran's request to reopen his claim of entitlement to service connection for acne was received in December 1995.  Therefore, the amended regulation does not apply. 

New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim.  38 C.F.R. § 3.156(a) (as in effect prior to August 29, 2001); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).  In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 

The Court has clarified that, with respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the claim as in this case dealing with a claim for service connection.  Evans v. Brown, 9 Vet. App. 273 (1996).  However, it is the specified bases for the final disallowance that must be considered in determining whether the newly submitted evidence is probative.  Id.  Such evidence must tend to prove the merits of the claim as to each essential element that was a specified basis for that last final disallowance of the claim.  Id.   

Recently, the Court stated that reopening a case is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim.  Shade v. Shinseki, 24 Vet. App. 110 (2010).  

As the final disallowance of the Veteran's claim of entitlement to service connection for acne was in January 1993, the Board must determine whether new and material evidence has been received subsequent to the January 1993 rating decision sufficient to reopen that claim. 

The evidence at the time of the prior rating decision included service treatment records showing that the Veteran entered service with acne.  These records also show that he was treated throughout service for acne.  Additionally, there was a December 1992 VA examination report which noted the presence of nodulocystic acne for which the Veteran took Accutane.  

The basis for denial of the Veteran's claim was that there was no evidence that his preexisting acne was chronically aggravated by his service.  The RO determined that the Veteran's course of treatment during service was remedial in nature and the condition progressed normally.  It was also noted that for a time, the Veteran's reaction was due to his failure to appropriately use medication.  

The new evidence includes post-service medical records.  The relevant evidence includes a March 1996 VA examination report which noted that the Veteran had several healed scars from chronic acne on his body, face, and neck.  The diagnoses included sebaceous cyst, healed post-acne scarring, acne cysts, and acne comedo formation.  On VA examination in August 2004, severe acne on the neck, chest, back, and face were observed.  A December 2004 VA examination report noted the use of Accutane shortly after service and that "it is equally possible or not that it temporarily was associated with his military service.  Thus, in this context, the acne might be considered service connected.   Thus, given the low standard of service connection and aggravation, this must be an issue as well. . . it is possible that his acne condition worsened shortly after enlistment; though I see no clear evidence that that indeed was true."    

The Board finds that the new evidence, namely the December 2004 VA examination report, is material.  The examiner's opinion is not equivocal as to whether the Veteran's acne was aggravated during service, which is the central inquiry with regard to whether the claim may be reopened.  However, this examination report, along with additional development for which the Board is directing on remand, raises a reasonable possibility of substantiating the claim.  See supra Shade, 24 Vet. App. 110 (2010).  Therefore, the Board concludes that the Veteran's claim for entitlement to service connection for acne should be reopened. 

Service Connection Claims

In general, service connection may be granted for disability or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2011). Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service.  38 C.F.R. § 3.303(d) (2011). 

To establish a right to compensation for a present disability, a Veteran must show: "(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"-the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).   
When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b) (2011). 

Service connection may also be granted on a presumptive basis for certain chronic disabilities, including cardiovascular disease, when such is manifested to a compensable degree within the initial post-service year.  See 38 U.S.C.A. §§ 1101, 1131, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2011).

Because the Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War, service connection may also be established under 38 C.F.R. 
§ 3.317.  Under that section, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia Theater of operations during the Persian Gulf War.  For disability due to undiagnosed illness and medically unexplained chronic multi symptom illness, the disability must have been manifest either during active military service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2016.  See 76 Fed. Reg. 81834 (Dec. 29, 2011) (codified at 38 C.F.R. § 3.317(a)(1) (2011)). 

For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A 1117(d)  warrants a presumption of service connection.

An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service.  Gutierrez  v. Principi, 19 Vet. App. at 8-9.  Further, lay persons are competent to report objective signs of illness.  Id.  To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar.  See 38 C.F.R. § 3.317(a)(5) (2011); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). 

A medically unexplained chronic multisymptom illnesses is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness.  A "medically unexplained chronic multisymptom illness" means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities."  Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained.  38 C.F.R. § 3.317(a)(2)(ii) (2011).

Functional gastrointestinal disorders are a group of conditions characterized by chronic or recurrent symptoms that are unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease and may be related to any part of the gastrointestinal tract.  Specific functional gastrointestinal disorders include, but are not limited to, irritable bowel syndrome, functional dyspepsia, functional vomiting, functional constipation, functional bloating, functional abdominal pain syndrome, and functional dysphagia.  These disorders are commonly characterized by symptoms including abdominal pain, substernal burning or pain, nausea, vomiting, altered bowel habits (including diarrhea, constipation), indigestion, bloating, postprandial fullness, and painful or difficult swallowing.  Diagnosis of specific functional gastrointestinal disorders is made in accordance with established medical principles, which generally require symptom onset at least six months prior to diagnosis and the presence of symptoms sufficient to diagnose the specific disorder at least three months prior to diagnosis.  38 C.F.R. 
§ 3.317 (a)(2)(i)(B)(3) (2011).

Presumptive service connection is warranted for certain infectious diseases: (i) Brucellosis; ii) Campylobacter jejuni; (iii) Coxiella burnetii (Q fever); (iv) Malaria; (v) Mycobacterium tuberculosis; (vi) Nontyphoid Salmonella; (vii) Shigella; (viii) Visceral leishmaniasis; and (ix) West Nile virus.  38 C.F.R. § 3.317(c)(1-2) (2011). The diseases listed in paragraph 38 C.F.R. § 3.317(c)(2) will be considered to have been incurred in or aggravated by service under the circumstances outlined in paragraphs (c)(3)(i) and (ii) of this section even though there is no evidence of such disease during the period of service. 

With three exceptions, the diseases listed in 38 C.F.R. § 3.317(c)(2) must have become manifest to a degree of 10 percent or more within 1 year from the date of separation from a qualifying period of service as specified in paragraph (c)(3)(ii) of this section.  Malaria must have become manifest to a degree of 10 percent or more within one year from the date of separation from a qualifying period of service or at a time when standard or accepted treatises indicate that the incubation period commenced during a qualifying period of service.  There is no time limit for visceral leishmaniasis or tuberculosis to have become manifest to a degree of 10 percent or more. 

Further, if a Veteran who has or had an infectious disease identified in column A of 38 C.F.R. § 3.317(d)(2) also has a condition identified in column B of that section as potentially related to that infectious disease, VA must determine, based on the evidence in each case, whether the column B condition was caused by the infectious disease for purposes of paying disability compensation.  This does not preclude a finding that other manifestations of disability or secondary conditions were caused by an infectious disease.  If a Veteran presumed service connected for one of the diseases listed in paragraph (c)(2) of this section is diagnosed with one of the diseases listed in column "B" in the table within the time period specified for the disease in the same table, if a time period is specified or, otherwise, at any time, VA will request a medical opinion as to whether it is at least as likely as not that the condition was caused by the veteran having had the associated disease in column "A" in that same table. 

"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) (2011).  Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders.  38 C.F.R. § 3.317(b) (2011). 

For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic.  The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest.  38 C.F.R. § 3.317(a)(4) (2011).

A Cardiovascular Disorder

The Veteran essentially contends that he has a cardiovascular disorder that is related to service.  He asserts that his disorder is related to either his service in the Persian Gulf or in the alternative secondary to Accutane use in service.  

While service treatment records are negative for any findings or complaints of a cardiovascular disorder, post-service medical records show impressions of Gulf War Syndrome secondary to mycoplasma fermentans incognitos.  

The other relevant evidence of record includes a June 1995 private treatment record reflecting that the Veteran had a very severe cardiomyopathy with only 10 percent cardiac function.  It was noted that there was speculation whether there was any connection to Accutane or exposure during the Gulf War, but the clinician thought that both were unrelated to the Veteran's disability.  

Additionally, in letters dated in December 1995 and January 1996, G.L.N., Ph.D. noted that cardiac problems were quite commonly found in veterans with Gulf War Syndrome.  Notably, Dr. N. indicated that 55 percent of these veterans have an invasive mycoplasma infection, and that he suspected that the Veteran was suffering from mycoplasma fermentans which causes chronic fatigue, headaches, skin rashes, stomach upsets, etc.  

Private hospitalization records dated in November 1995 show that the Veteran was treated for dilated cardiomyopathy.  Additionally, a March 1996 VA examination report noted cardiomyopathy.  A June 1996 private treatment record from G.J.F., M.D. reflected an impression of cardiomyopathy, likely infectious in etiology.   

A July 1996 letter from Dr. N. noted that the Veteran had mycoplasma infection, which is not usually detected in routine lab tests.  Dr. N. indicated that this particular type of mycoplasma was notable in that it was contagious and close contact led to airborne transmission, and that the Veteran probably contracted the infection during Operation Desert Storm or by having contact with people who served in the Gulf War.  It was noted that infection could result in chronic fatigue, fever, night sweats, joint pain, upset stomach and cramps, headaches, skin rashes, heart pain, heat abnormalities, etc.  and that such would respond well to antibiotics.

An October 1996 letter from Dr. F. noted the Veteran's Persian Gulf War illness and indicated that the Veteran had a chronic illness dating back to 1991 with some of his illness related to mycoplasma fermentans incognitus.  

A July 1997 letter from J.M.N., M.D. noted the Veteran's antibiotic treatment for mycoplasma fermentans incognitus, which he may have acquired during the Persian Gulf War.  

A January 1998 memorandum from the Program Director for Infectious Disease, VAHQ noted review of the literature and claims folder.  The Director indicated that mycoplasma incognitus could cause human disease of varying types and that there was no "unassailable evidence that widespread infection with Mycoplasma incognitus occurred in Southwest Asia during the Gulf War."  The Director, acknowledged Dr. N's information but concluded that the organism had a wide geographical distribution making it impossible to definitively state that the infection originated in Southwest Asia.  As to the Veteran specifically, the Director noted that the Veteran had an acute and severe episode of heart failure related to cardiomyopathy.  He indicated that routine virologic testing did not demonstrate an etiological agent common in those with idiopathic cardiomyopathy, and that the Veteran responded to antibiotic treatment directed towards mycoplasma.  It was also pointed out, however, that many people recovered without specific therapy.  He concluded that it would be very difficult to verify the causal relationship between mycoplasma incognitus infection and the Veteran's episode of severe cardiomyopathy though a temporal relationship was suggested.  

An April 1998 memorandum from the Acting Director of Medical Services at the Office of Public Health and Environmental Hazards noted that, as a cardiologist reviewing the literature, she was in agreement with the January 1998 findings of the Program Director of Infectious Disease that a causal relationship was not likely but that it would be difficult to specifically disprove.  

An April 1998 memorandum from the Chief of Public Health and Environmental Hazards Office noted it was possible but not likely that the Veteran's cardiomyopathy was caused by mycoplasma incognitus acquired during the Gulf War and it was also possible but not likely that the subjective symptoms claimed by the Veteran have existed since he left service were caused by mycoplasma incognitus. 

A February 2000 letter from P.D.M., M.D. noted that the Veteran's complaints did not seem related to a clear known cause of difficulty such that it could be diagnosed or whether it could be determined that the Veteran was exposed to something that led to development of his problems.  Dr. Moody stated that congestive heart filature, fatigue, and cardiomyopathy, among other things, were things he pulled together but he could not relate them.  The dry eyes, migraine headaches, gastroenteritis, anxiety, and sleep disorder could not be related either but they might possibly be.  Chronic joint and muscle pain were among themselves, but he wondered as to their relationship to congestive heart failure.  He indicated that he could not tightly relate these problems at all by one or more causes, but he pondered whether because they followed on the heels of being in service whether their relationship was related to something the Veteran had been exposed to in service.  Dr. M. suspected that they were all temporally related, suggesting that they were related to a cause but he said it was an unknown causative agent.  Dr. M. stated that it was not apparent to him, an infectious disease specialist, but that he was concerned that something in service was the cause.  He believed that if it was another cause that was unrelated to service that these things would mesh together better.  

On VA examination in December 2000, the examiner outlined the Veteran's extensive medical history, which is summarized here in relevant part, and found  that there was no evidence of complaints or treatment for cardiovascular disorder in service.  It was noted that around 1994, he had onset of fatigue and dyspnea, which worsened in the summer of 1995.  In October 1995 an enlarged heart and fluid was found on chest X-ray.  The Veteran was treated for heart failure in November 1996.  The examiner provided an extensive evaluation and review of the medical literature as noted in the claims folder in particular to the role of mycoplasma incognitus.  He cited to a report from the Program Director for Infectious Diseases at VAHQ who noted that there were some cases of bacterial infection causing cardiomyopathy but no clear concentration in the southwest Asia theater.  It was noted in that report that it would be difficult to verify the casual relationship between cardiomyopathy incognitus infection and the Veteran's episode of severe cardiomyopathy, though a temporal relationship was suggestive.  The Director noted that at the current time there was no clear mechanism for determining whether there was a relationship between service in the Gulf War and mycoplasma incognitus infection.  In addressing Dr. N's report, the examiner noted that he did not address the time lapse of over three years from March 1991 to 1994 when the Veteran first had symptoms of congestive heart failure.  The examiner concluded that it was not clear that the mycoplasma incognitus was the causative agent or that he had contracted the disorder by serving in southwest Asia.  It was noted that that the Veteran had mild hypertension.  

On VA examination in August 2004, controlled hypertension not deemed related to service, congestive heart failure, and cardiomyopathy in 1995 and 1996 not likely related to service were noted.     

An April 2005 private treatment record noted a diagnosis of alcoholic cardiomyopathy but the clinician indicated disagreement with such a characterization.  It was stated that there had been cardiac dysfunction for as long as nine years and there was concern that alcohol may have played a role but that it was not justified to dismiss the Veteran's disability as solely due to being an alcoholic.  

A February 2006 VHA opinion noted that, based on review of the medical literature, the examiner found one reported case of cardiomyopathy associated with the use of Accutane but the patients were on multiple therapies in addition to Accutane, which was not used for acne treatment.  The examiner found that the preponderance of the evidence of cardiomyopathy related to Accutane alone was less than a 50 percent probability.  

A November 2006 VA examination report noted that the Veteran's service treatment records were negative for any evidence of cardiomyopathy and there was no evidence of symptoms which would fit cardiomyopathy.  In making this finding, the examiner noted that one must be open to the possibility that a new syndrome could be present in the Veteran's situation.  However, in that case it would be expected that after 15 years after the initial exposure by the Veteran, as well as numerous others, to the environment of the Middle East and Desert Storm that there would be some clinical evidence manifested by similar presentations of other veterans having these problems.  With this in mind and by being as open minded as possible, the examiner indicated that there was no evidence that mycoplasma fermentans incognitus or other exposure in the Gulf was related to cardiomyopathy.  He found that it was an infectious etiology.  The examiner observed that there was no evidence that the Veteran demonstrated any symptoms of an infection during his period of service or during the first year thereafter.  He indicated that there was no link between the Veteran's claimed cardiomyopathy and Persian Gulf service, to include any chemical/biological exposure, pyridostigmine pills, vaccination, ingestion of water treated with iodine, insect bites, pesticides, diesel fumes, or depleted uranium.  It was further noted that the claimed disability was not due to a blood disorder in service based on the lack of evidence.  It was noted, however, that it was difficult to provide that a group of symptoms was not due to a specific etiology.  The premise was if there was a casual relationship between a specific exposure, specific infection, or specific toxin, then it was reasonable that, due to the multiple exposures by over 100,000 service members, at least a minimal representation by a similar group of symptoms would have appeared, which would  strongly suggest a causal relationship between the exposure and the resultant consequences.  However, the examiner concluded that he did not find such an etiological relationship present.  

A February 2007 letter from an infectious disease specialist from the VA in Denver noted that the Veteran's case had been researched extensively.  As to the Board's inquiry whether the Veteran's mycoplasma incognitus infection was present in service, the examiner noted that it was likely as not that such was present.  Although there was no test for mycoplasma incognitus while the Veteran was in service, the specialist found that it was as likely as not that the result of that test would have been positive had the Veteran been tested.  The specialist further noted that the weight of the evidence was against finding that the infection caused the Veteran's cardiomyopathy.  While he acknowledged that there was a remote possibility that mycoplasma incognitus could play a role, he found that it did not meet the standard of "as likely as not."  It making this determination, the specialist cited to relevant medical literature.   

After considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection as due to an undiagnosed illness for his cardiovascular disorder.   Indeed, the Veteran's cardiovascular disorder has been specifically attributed to a diagnosed medical disability-namely, cardiomyopathy. 

Because the Veteran's cardiac symptomatology has been medically associated with a diagnosed disability, there is no evidence of record indicating the presence of a medically unexplained chronic multisymptom illness due to his Gulf War service. Thus, the Veteran's service-connection claim for a cardiovascular disorder as due to an undiagnosed illness must be denied. 

Although service-connection under the provisions of 38 C.F.R. § 3.317 is not warranted in this case, the Veteran is not precluded from establishing service connection for a disease averred to be related to service, as long as there is proof of such direct causation.  Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  Indeed, the Veteran has advanced argument to this end, which will be addressed immediately below. 

As noted above, in order to establish service connection for the claimed disorder on a direct basis, there must be (1) evidence of a present disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a causal relationship between the two.  

It is undisputed that the Veteran has a current cardiovascular disorder- cardiomyopathy as noted above.  Element (1), present disability, is accordingly satisfied. 

With respect to in-service disease, the Veteran's service treatment records are pertinently negative for any diagnosis or complaints related to a cardiovascular disorder.  Moreover, there is no indication that his cardiovascular disorder manifested within the one year presumptive period after service as the first indication of a disability was not 1995.  See 38 U.S.C.A. §§ 1101, 1131, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2011).  Therefore, in-service disease as not been demonstrated. 

Turning to in-service injury, the Board notes the Veteran's contention that he was exposed to various agents (i.e. use of Accutane and infection with mycoplasma incognitus) which resulted in his current disorder.  The evidence is clear that the Veteran took Accutane during service.  Additionally, the weight of the evidence outlined above shows that the Veteran was infected with mycoplasma incognitus during service.  Thus, the Board finds that element (2) is satisfied.   

With respect to crucial element (3), causal relationship, the question presented, i.e., the relationship, if any, between the Veteran's current cardiovascular disorder and service, is essentially medical in nature.  The Board is prohibited from exercising its own independent judgment to resolve medical questions.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). 

As to a relationship between the Veteran's use of Accutane during service and his current cardiovascular disability, the Board notes that there are two opinions addressing this issue.  In the June 1995 private treatment record, the clinician opined that the Veteran's cardiovascular disability was not related to Accutane use.  Additionally, the February 2006 VHA opinion specifically noted the preponderance of the evidence was against finding that the Veteran's cardiomyopathy was due to Accutane use.  

With regard to the relationship between the Veteran's cardiovascular disorder and mycoplasma incognitus, there are multiple opinions of records as noted above.  A brief summary of these opinions include the January 1998 memorandum which reflected that it would be very difficult to verify the causal relationship between mycoplasma incognitus infection and the Veteran's episode of severe cardiomyopathy though a temporal relationship was suggested.  The April 1998 memorandum from the Acting Director of Medical Services at the Office of Public Health and Environmental Hazards affirmed the January 1998 memorandum.  Additionally, the April 1998 memorandum from the Chief of Public Health and Environmental Hazards Office found it unlikely that the Veteran's cardiomyopathy was caused by mycoplasma incognitus acquired during the Gulf War.  The December 2000 examination report found that it was unclear as to the relationship between mycoplasma incognitus and current cardiovascular disorder.  The August 2004 VA examination report reflected that the Veteran's current cardiovascular disorder was not related to service.  The November 2006 VA examiner was clear that there was no evidence that mycoplasma fermentans incognitus or other exposure in the Gulf was related to cardiomyopathy.  Finally, the February 2007 letter from the infectious disease specialist indicated that it was not as likely as not that mycoplasma fermentans was related to the Veteran's disorder.  

The Board finds the various VA opinions, to include the February 2006 VHA opinion with regard to the role of Accutane and the February 2007 letter from the infectious disease specialist, are probative as they were was definitive, based upon a complete review of the Veteran's entire claims file, including the various other opinions, and extensive review of the medical literature.  While some of the other evidence provides a speculative opinion, the VA opinions are definitive.  In this regard, the Board notes that service connection may not be based on a resort to pure speculation or even remote possibility.  See 38 C.F.R. § 3.102 (2011).  Accordingly, the VA opinions are found to carry significant weight.  Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.  See Prejean v. West, 13 Vet. App. 444, 448-49 (2000).  Furthermore, the VHA opinion is consistent with the other evidence of record, i.e. the June 1995 private treatment record.  Likewise, the findings outlined in the February 2007 letter mirror the other evidence of record.  

Crucially, no medical opinion or evidence of record contradicts the findings of the reports which are negative as to the relationship between the Veteran's current disorder and service.  The Veteran has been afforded ample opportunity to present medical evidence contrary to these opinions in support of his claim.  He has failed to do so.  See 38 U.S.C.A. § 5107(a) (West 2002) (it is the claimant's responsibility to support a claim for VA benefits). 

To the extent that the Veteran himself, or his representative, contends that a medical relationship exists between his current disability and service, the Board acknowledges that the Veteran is competent to testify as to his observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).  Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). 

However, in this case, statements as to a possible relationship between the Veteran's current cardiovascular disorder and his military service is an etiological question unlike statements as to a separated shoulder, varicose veins, or flat feet, which are capable of direct observation.  See Jandreau, 492 F.3d at 1376 (noting that lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308 -09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (discussing that unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. at 405 (finding that a lay person is competent to testify to pain and visible flatness of his feet). 

There is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding the etiology of his current cardiovascular disorder.  See 38 C.F.R. § 3.159(a)(1) (2011) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions).  In this circumstance, the Board gives more credence and weight to the medical reports rendered by medical experts, including those with expertise in infectious diseases, than to the Veteran's lay assertions.  

Thus, the competent and credible evidence of record [both lay and medical] demonstrates that the Veteran's cardiovascular disorder is not related to service, to include Accutane use therein and exposure to mycoplasma incognitus.   Accordingly, element (3), relationship or nexus, has not been satisfied, and the Veteran's service-connection claim fails on this basis.  

In sum, the Board finds that the preponderance of the evidence is against the Veteran's claim, and that claim must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

A Skin Disorder (other than acne and dermatitis of the hands)

The Veteran contends that he has a skin disorder related to service, to include due to his service in the Persian Gulf or secondary to Accutane use during service.  He has also has maintained that he has had cysts ever since service.  

Service treatment records include a November 1989 record noted a raised boil measuring two inches on the back, which was drained.  

Post-service records include a March 1995 private treatment record noting that skin from the left neck had been excised and which was identified as epidermal inclusion cyst.   On VA examination in March 1996, the examiner noted that the Veteran had sebaceous cysts in addition to healed post acne scars and cysts.  A June 1997 private treatment record noted axillary cysts with secondary staphylococcal infection.  A January 2003 private treatment record noted that epidermal cyst of the lower lip was excised.  A July 2004 record noted that epidermal cysts of the neck and right shoulder had been excised.  

An August 2004 VA examination report noted diagnosis of tinea pedis and unguium, and severe folliculitis scarring on the back, and hidradenitis in the buttocks.  These disorders were associated with classic acne scar, which were related to service.  The examiner also noted hand dermatitis, and determined that both the hand and feet skin disorders were considered service-connected.  It was noted that the totality of the evaluation, which included a KOH prep, did not substantiate tinea pedis but there was some tinea pedis noted clinically with some onychomycosis.  

A December 2004 VA examination report noted, in relevant part, that cysts were thought to be related to acne vulgaris, which was treated after service and Accutane was started after enlistment.  The examiner noted that he did not find any complications, aside from short-term side effects.  Tinea pedis unguium did not appear to be related to service in any way.  It was noted that during service in November 1989, the Veteran had a boil on his buttock, which is not an area classically known for acne.  It was stated that all cysts away from the classic areas (i.e. not on the chest, shoulders, back, and face) would not be considered acne.  Unlike the usage of the term in England, lesions such as these are not considered acne in the U.S. and are considered a separate disease and would be considered service-connected.  

A December 2005 VA treatment record shows that skin was intact.  

A February 2006 VHA opinion noted that there were no skin conditions which resulted as a side effect from Accutane use.  

A February 2006 private treatment record noted cysts over the occipital prominence behind the mastoid prominence and above.  The clinician indicated that they might be sebaceous cysts.  An April 2006 VA treatment record noted that skin was within normal limits.  Additionally, a VA treatment record dated in August 2006 noted that skin was within normal limits.  A September 2006 VA treatment record reflects there were no acute rashes, lesions, or indurations.   

The November 2006 VA examination report noted that the Veteran's service treatment records were negative for any evidence of lesions of the left posterior neck and upper arms.  In making this finding, the examiner noted that one must be open to the possibility that a new syndrome could be present in the Veteran's situation, which would be expected that after 15 years after the initial exposure by the Veteran as well as numerous others to the environment of the Middle East and Desert Storm that there would be some clinical evidence manifested by similar presentations of other veterans having these problems.  There was no link between the Veteran's claimed lesions of the left posterior neck and upper arms and Persian Gulf service, to include any chemical/biological exposure, pyridostigmine pills, vaccination, ingestion of water treated with iodine, insect bites, pesticides, diesel fumes, or depleted uranium.  It was further noted that the claimed disorder was also not due to a blood disorder in service based on the lack of evidence.  It was noted, however, that it was difficult to provide that a group of symptoms were not due to a specific etiology.  In so doing, there is the premise that if there is a casual relationship between a specific exposure, specific infection, and specific toxin, then it was reasonable that due to the multiple exposures by over 100,000 service members that at least a minimal representation by a similarly group of symptoms would have appeared, strongly suggesting a causal relationship between the exposure and the resultant consequences.  However, the examiner concluded that he did not find such an etiological relationship present in this case.  

A February 2007 letter from an infectious disease specialist from the VA in Denver noted that the Veteran's case had been researched extensively.  As to the Board's inquiry whether Veteran's mycoplasma incognitus infection was present in service, the examiner noted that it was likely as not that such was present.  Although there was no test for mycoplasma incognitus while the Veteran was in service, the specialist found that it was as likely as not that the result of that test would have been positive had the Veteran been tested.  The specialist further noted that the weight of the evidence was against finding that the infection caused the Veteran's  lesions of the left posterior neck and upper arms.  It was noted that although there was a remote possibility that mycoplasma incognitus could play a role, the examiner found that it did not meet the standard of "as likely as not."  It making this determination, the examiner cited to relevant medical literature.   

A March 2007 private treatment record noted that there was no skin rash.  

After considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection as due to an undiagnosed illness for his skin disorder.  Indeed, the Veteran's skin disorder has been specifically attributed to variously diagnosed medical disability-namely, cysts and tinea pedis unguium.  Because the Veteran's skin disorders have been medically associated with diagnosed disabilities, there is no evidence of record indicating the presence of a medically unexplained chronic multisymptom illness due to his Gulf War service.  Thus, the Veteran's service-connection claim for a skin disorder as due to an undiagnosed illness must be denied. 

Although service-connection under the provisions of 38 C.F.R. § 3.317 is not warranted in this case, the Veteran is not precluded from establishing service connection for a disease averred to be related to service, as long as there is proof of such direct causation.  Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  Indeed, the Veteran has advanced argument to this end, which will be addressed immediately below. 

As noted above, in order to establish service connection for the claimed disorder on a direct basis, there must be (1) evidence of a present disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a causal relationship between the two.  

While the Veteran has been noted on several occasions to have normal skin which is reflected in the most recent evidence of record (both a September 2006 VA and a March 2007 private record noted that the Veteran had no rashes or lesions), he has been shown to have various skin disorders (to include cysts and tinea pedis unguium) during the course of the appeal.  Therefore, the Board finds that element (1), present disability, is accordingly satisfied.  See McClain v. Nicholson, 21 Vet. App. 319 (2007). 

With respect to crucial element (2), in-service disease or injury, the Veteran's service treatment records include a November 1989 record noting a raised boil measuring two inches on the back, which was drained.  Additionally, the Veteran has indicated that his disorder could be related to Accutane use during service and the Board notes that it is undisputed that the Veteran used Accutane in service.  It has also been suggested that the Veteran's disorder could be related to mycoplasma incognitus infection during service, and his infection has already been established as outlined above.  Thus, element (2) is met.  

With respect to crucial element (3), causal relationship, the question presented, i.e., the relationship, if any, between the Veteran's current disability and his military service, is essentially medical in nature.  The Board is prohibited from exercising its own independent judgment to resolve medical questions.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). 

All of the evidence cited above reflects that there is no relationship between the Veteran's skin disorders and service, to include Accutane use and infection with mycoplasma incognitus.  Notably, the February 2006 VHA opinion reflected that there were no skin conditions due to Accutane use.  Additionally, the November 2006 VA examination report showed that the Veteran's claimed lesions of the left posterior neck and upper arms were not related to Persian Gulf service.  Furthermore, the February 2007 specialist noted that it was not as likely as not that the Veteran's lesions of the left posterior neck and upper arms were related to mycoplasma incognitus.  

Although the August 2004 examiner noted that tinea pedis was considered service-connected, he did not provide any basis for his statement.  The December 2004 VA examiner determined that both the hand and feet skin disorders considered service-connected.  While the Veteran is already service-connected for a skin disorder of the hands, there is no indication that service connection for a foot disorder is warranted.  The examiner does not provide reasons for his opinion.  Crucially, service treatment records are negative for any complaints or findings of tinea pedis.  Therefore, the Board affords little probative value to the December 2004 VA report.  

In this case, while the Veteran is competent to testify as to his observations, statements as to a possible relationship between the Veteran's current disorder and his military service is an etiological question unlike statements as to a separated shoulder, varicose veins, or flat feet, which are capable of direct observation.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).  There is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding the etiology of any currently diagnosed skin  disorder.  See 38 C.F.R. § 3.159(a)(1) (2011) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions).  In this circumstance, the Board gives more credence and weight to the medical reports rendered by medical experts than to the Veteran's lay assertions.  

Thus, the competent and credible evidence of record [both lay and medical] demonstrates that the Veteran's skin disorder is not related to service, to include Accutane use therein and exposure to mycoplasma incognitus.   Accordingly, element (3), relationship or nexus, has not been satisfied, and the Veteran's service-connection claim for fails on this basis.  

In sum, the Board finds that the preponderance of the evidence is against the Veteran's claim, and that claim must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

CONTINUED ON NEXT PAGE

ORDER

New and material evidence having been received, the application to reopen a claim for service connection for acne is allowed.  To that extent only, the appeal is allowed.

Entitlement to service connection for a cardiovascular disorder, to include as due to an undiagnosed illness and in-service use of Accutane, is denied.

Entitlement to service connection for a skin disorder other than acne and dermatitis of the hands, to include as due to an undiagnosed illness and in-service use of Accutane, is denied.


REMAND

Unfortunately, another remand is required in this case.  Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims.  

VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion only when it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2011).  See also Robinette  v. Brown, 8 Vet. App. 69, 76 (1995). 

As to the claim for service connection for acne, the Board finds that additional development is necessary before the claim can be adjudicated.  As noted above, service treatment records show that the Veteran was treated during service for his pre-existing acne.  However, the examination report of record addressing whether acne was aggravated during service is insufficient for the Board to determine whether service connection is warranted.  As cited above, the December 2004 VA examiner noted that "acne might be considered service connected. . . given the low standard of service connection and aggravation, this must be an issue as well. . . it is possible that his acne condition worsened shortly after enlistment; though I see no clear evidence that that indeed was true."  On remand, the Veteran must be afforded an examination to determine whether his pre-existing acne was aggravated in service.      

Also, as to the claim for an eye disorder, the pertinent evidence of record includes a September 2004 VA examination report.  In that report, the examiner noted a diagnosis of myopia correctable to 20/20 with presbyopia in both eyes and slight blepharitis secondary to acne.  This examination report raises the issue of whether service connection on a secondary basis is warranted.  Establishing service connection on a secondary basis essentially requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either caused or aggravated by a service-connected disability. 38 C.F.R. §§ 3.303, 3.310 (as in effect prior to October 10, 2006).  See Allen v. Brown, 7 Vet. App. 439, 446 (1995) (holding that if aggravation of a veteran's nonservice-connected disability is proximately due to or the result of a service-connected disease or injury, it too shall be service connected for that degree of aggravation; see also 38 C.F.R. § 3.310 (2011).  [The provisions of 38 C.F.R. § 3.310  were amended, effective from October 10, 2006.  71 Fed. Reg. 52744-47 (Sept. 7, 2006).  Because the Veteran submitted his claim prior to October 10, 2006 (the effective date of the amended provisions), the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made.  See 38 C.F.R. § 3.310 (2011); Allen supra, 7 Vet. App. at 446; see also generally, Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003)].  See also Barr supra, 21 Vet. App. at 303. 

The law provides that when a determination on one issue could have a significant impact on the outcome of another issue, such issues are considered inextricably intertwined and VA is required to decide those issues together.  Harris v. Derwinski, 1 Vet. App. 180 (1991).  In this case, the Veteran's claim for an eye disorder is dependent on the adjudication of his service connection for acne.  Thus, adjudication of the claim for an eye disorder will be held in abeyance pending further development and adjudication of the Veteran's service connection claim for acne. 

As to the claim for a disorder manifested by multiple joint and muscle pain, the pertinent evidence of record includes an October 2007 amended IME report.  Based on review of the medical records, the physician indicated that he could not make a diagnosis as to the etiology of the multiple joint and muscle pain.  He observed that while rheumatologic blood tests were not contributory, no specific examination had been done to determine if a diagnosis of fibromyalgia was warranted.  The physician went on to indicate that it was possible that the Veteran's symptoms were related to a yet unknown illness or experience in the Gulf but may more likely related to or associated with possibly the unknown illness (viral mycoplasma, etc) that have been suggested as to the cause of the myopathy diagnosed in 1995 and markedly improved.  The physician concluded that it was not as least likely as not that multiple joint and muscle pain were due to Persian Gulf service.  The Board finds the record is incomplete as pointed out by the VA examiner and that additional testing of the Veteran is warranted, specifically to determine whether the Veteran has fibromyalgia.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that when VA undertakes to provide a VA examination, it must ensure that the examination is adequate).      

With regard to the claim for a gastrointestinal disorder, the pertinent evidence includes the amended October 2007 IME report which noted the Veteran's report of having had gastrointestinal symptoms in service but without documentation of such in the service treatment records.  In outlining the pertinent post-service medical history, the physician found that the Veteran's significant psychiatric illness and stress could be contributing to his symptoms and based on the available records a diagnosis of IBS was likely but that that further testing might be helpful.  However, if there was a diagnosis of IBS, the etiology of such would be unknown and it was accordingly possible that gastrointestinal symptoms/disorder may be related to a yet undiagnosed illness but not very likely.  The physician concluded that it was not at least likely as not that the gastrointestinal symptoms were due to Persian Gulf service.  

Because the VA examiner has indicated that further testing was necessary to determine whether the Veteran has IBS and that the Veteran's psychiatric illness may contribute to his gastrointestinal symptoms, and the Veteran is service-connected for PTSD and has a pending service connection claim for an acquired psychiatric disorder other than PTSD, the Veteran must be afforded another examination to determine the exact nature of his gastrointestinal disorder, i.e. whether a diagnosis of IBS is appropriate, and to determine whether his service-connected PTSD aggravates his gastrointestinal symptoms.  See Allen supra, 7 Vet. App. at 446; see also Barr supra, 21 Vet. App. at 303. 

Turning to the claim for acquired psychiatric disorder and a sleep disorder other than PTSD, the Board notes that the Veteran has been diagnosed with various disorders during the course of the appeal.  For example, a March 1996 VA examination report noted insomnia the cause of which was unknown, an April 1996 VA examination report noted a diagnosis of an adjustment disorder with anxious mood, a June 1999 private treatment record noted obstructive sleep apnea syndrome, a November 1999 private record noted manic depression, an August 2004 VA examination report noted a diagnosis of hypomanic bipolar disorder, and rule out alcohol use.  Additionally, a December 2004 private treatment record noted diagnoses of bipolar disorder, not otherwise specified and questionable, and obsessive compulsive personality disorder, and an October 2005 examination report noted hypo manic bipolar disorder.  

The record also includes a June 2005 VA examination report, which was rendered after review of the claims folder and the Physicians' Desk Reference.  The examiner noted that bipolar disorder was less likely as not (less than 50/50 probability) caused by or the result of Accutane treatment, or an event in service.  Citing to the Physicians' Desk Reference report, the examiner stated that it was unusual to find severe mental disorders following use of the drug but caution was advised with use of the medication due to other side effects.  The examiner indicated that there were numerous events in the Veteran's history to determine the cause of his emotional volatility, including an eight to nine year history of anti-depressant medications that rarely precipitate manic-type behavior in someone with depressive features.  

While the June 2005 VA examiner discussed whether bipolar disorder was related to Accutane use during service, he did not address the relationship of the other psychiatric disorders noted throughout the appeal.  Because the Board finds that the evidence of record does not sufficiently address the nature and etiology of the Veteran's variously diagnosed psychiatric disorders, other than PTSD, the Veteran must be afforded another examination on remand.  See Barr supra, 21 Vet. App. at 303.

As to the claim for a smell disorder, the relevant evidence includes a February 2006 VHA opinion, which noted that based on review of the medical literature there was a reported case of olfactory disturbance following Accutane treatment but it was unknown how long this lasted but that it was a possible side effect that might be long lasting.  The physician found that in the Veteran's case that it was difficult to extrapolate and the preponderance of the evidence was against this being a chronic side effect of the drug, but acknowledged it might just be his opinion.  There is also an October 2007 amended IME report, which noted the Veteran's report of a smell disorder since service but without any documentation of such in the service treatment records.  The physician pertinently noted that the record included an August 2004 examination which noted the Veteran's report of smelling mildew or "musty smell" while in the Gulf and experiencing a similar smell two to three times a year since 1990.  The physician indicated that he did not know whether the onset of such smell was during a stressful time as such could be brought on by vivid memories of a traumatic event.  Acknowledging that the Veteran had PTSD, the physician noted that the smell disorder could be related to sinusitis, though it was deemed unlikely if it resolved within a few minutes.  The physician noted that more information as to the situation of the first experience, and temporal association to exacerbation of PTSD, sinusitis, rhinitis, or other situation would be helpful to understand the smell disorder.  He, therefore, found that since the etiology of the smell disorder remained unknown, it was possible, but not very likely that, it was related to a yet unknown experience or illness in the Gulf (other than PTSD).  The physician concluded that it was not as likely as not that the reported smell disorder was due to service in the Persian Gulf.   

The Board finds that further evaluation of the Veteran is necessary because the October 2007 examiner indicated that more information as to the situation of the first experience, and temporal association to exacerbation of PTSD, sinusitis, rhinitis, or other situation would be helpful to understand the smell disorder.  Therefore, on remand, the Veteran must be afforded another examination to determine the nature and etiology of any smell disorder.   

With regard to the claim for migraine headaches, the pertinent evidence includes an October 2007 amended IME opinion.  The physician noted that he reviewed the record and noted that while the Veteran indicated that he had headaches ever since service that there were no records of such complaints or treatment.  The physician noted numerous post-service complaints of headaches beginning in March 1996, at which time the Veteran reported having had headaches since March 1991.  It was observed that there was no medical evidence demonstrating a diagnosis of headaches and the Veteran's documented medical history was consistent with tension headaches as the records show that the Veteran had been under psychiatric care and noted to be under stress.  The physician pointed out that other potentially contributing or causative factors were acute exacerbation of chronic sinusitis or rhinitis, obstructive sleep apnea, and PTSD that was exacerbated by lack of sleep.  The physician noted that the records do not show any temporal association of headaches (except as stress and tension) with any exacerbation of psychiatric illness, sleep problems, sinusitis or rhinitis, and therefore the cause of the headaches was unknown.  The physician opined that it was possible that the headaches may be related to yet unknown exposure or illness during the Gulf war but not very likely.  The physician concluded that it was not at least likely as not that headaches were due to Persian Gulf service.  Based on this evidence, the Board finds that it is unclear whether the Veteran's migraine headaches are aggravated by his service-connected PTSD.  Therefore, on remand, he must be provided an examination to determine whether his migraine headaches are aggravated therein.  See supra Allen, 7 Vet. App. at 446; supra Barr, 21 Vet. App. at 303.

Accordingly, the case is REMANDED for the following actions:

1.  Schedule the Veteran an examination to determine the etiology of his acne.  The claims folders and a copy of this remand must be reviewed prior to the examination and the examiner should state on the examination report that review of the claims folder was accomplished. 

The examiner should determine whether there a 50 percent probability or greater that the Veteran's preexisting acne was aggravated (increased in disability) by service, or whether there is clear and unmistakable evidence that the increase in disability is due to the natural progress of the disease. 

The reviewer must provide supporting rationale for the opinions rendered, cite to the relevant evidence of record, and reconcile any contradictory evidence of record. 

If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.  See Jones v. Shinseki, 23 Vet. App. 382 (2010). 

2.  Schedule the Veteran for a VA examination to determine the nature and etiology of his claim for an eye disorder.  The claims folder, to include a copy of this remand and any additional evidence secured, must be made available to and reviewed by the examiner prior to completion of the examination report, and the examination report must reflect that the claims folder was reviewed.  Any indicated studies should be performed and the following items should be addressed: 

a. Determine whether there is a 50 percent or better probability that any current eye disorder was either (1) caused by or (2) is aggravated by the Veteran's service-connected acne (or a service-connected disorder).    

b. If the examiner determines that the Veteran's eye disorder  is aggravated  (i.e., permanently worsened) by acne (or a service-connected disorder), the examiner should identify the percentage of disability which is attributable to the aggravation.  See 38 C.F.R. § 3.310 (as in effect prior to October 10, 2006); Allen v. Brown, 7 Vet. App. 439 (1995). 

The reviewer must provide supporting rationale for the opinions rendered, cite to the relevant evidence of record, and reconcile any contradictory evidence of record. 

If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.  See Jones v. Shinseki, 23 Vet. App. 382 (2010). 

3.  Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed disorder manifested by multiple joint and muscle pain.  The claims folder, to include a copy of this remand and any additional evidence secured, must be made available to and reviewed by the examiner prior to completion of the examination report, and the examination report must reflect that the claims folder was reviewed. Any indicated studies should be performed and the following items should be addressed: 

a. Determine whether the Veteran has a diagnosis of fibromyalgia. 

b. Elicit from the Veteran details about the onset, frequency, duration, and severity of all complaints relating to both his fatigue, and muscle and joint pain, and indicate what precipitates and what relieves his symptoms.

c.  Determine whether there are any objective medical indications that the Veteran is suffering from muscle and joint pain. 

d. State whether the Veteran's muscle and joint pain are attributable to a diagnosed or undiagnosed illness. 

e. If the Veteran's muscle and joint pain is attributable to a diagnosed illness(es), is there a 50 percent probability or greater that it had its onset in service or is otherwise related to an incident in service? 

The reviewer must provide supporting rationale for the opinions rendered, cite to the relevant evidence of record, and reconcile any contradictory evidence of record. 

If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.  See Jones v. Shinseki, 23 Vet. App. 382 (2010). 

4.  Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed gastrointestinal disorder.  The claims folder, to include a copy of this remand and any additional evidence secured, must be made available to and reviewed by the examiner prior to completion of the examination report, and the examination report must reflect that the claims folder was reviewed.  Any indicated studies should be performed and the following items should be addressed: 

a. State whether the Veteran's gastrointestinal symptoms are attributable to a diagnosed or undiagnosed illness. 

b.  Determine whether the Veteran has a diagnosis of IBS, and/or determine the exact nature of the Veteran's disorders.

c.   Is there is a 50 percent or better probability that any currently diagnosed disorder is related to the Veteran's military service?

d.  Is there a 50 percent or better probability that the disorder was either (1) caused by or (2) is aggravated by the Veteran's service-connected PTSD or any other service-connected disorder?    

e.  If the examiner determines that the Veteran's disorder  is aggravated  (i.e., permanently worsened) by  PTSD or any other service-connected disorder, the examiner should identify the percentage of disability which is attributable to the aggravation.  See 38 C.F.R. § 3.310 (as in effect prior to October 10, 2006); Allen v. Brown, 7 Vet. App. 439 (1995). 

The reviewer must provide supporting rationale for the opinions rendered, cite to the relevant evidence of record, and reconcile any contradictory evidence of record. 

If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.  See Jones v. Shinseki, 23 Vet. App. 382 (2010). 

5.  Schedule the Veteran an examination to determine the nature and etiology of any psychiatric disorder and sleep disorder, other than PTSD, noted during the appeal period. The claims folders and a copy of this remand must be reviewed prior to the examination and the examiner should state on the examination report that review of the claims folder was accomplished.  Any indicated studies should be performed and the following items should be addressed: 

a. State the diagnoses of all current psychiatric and sleep disorders.  

b.  Determine whether there is a 50 percent or better probability that any currently diagnosed disorders are  related to the Veteran's military service. 

c. Address all of the various diagnoses the Veteran has received during the course of the appeal (e.g. insomnia, obstructive sleep apnea syndrome, an adjustment disorder with anxious mood, manic depression, obsessive compulsive personality disorder, etc) and determine whether there is a 50 percent or better probability that any of those disorders are related to the Veteran's military service, to include Accutane treatment therein.  

The reviewer must provide supporting rationale for the opinions rendered, cite to the relevant evidence of record, and reconcile any contradictory evidence of record. 

If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.  See Jones v. Shinseki, 23 Vet. App. 382 (2010). 

6.  Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed smell disorder.  The claims folder, to include a copy of this remand and any additional evidence secured, must be made available to and reviewed by the examiner prior to completion of the examination report, and the examination report must reflect that the claims folder was reviewed. Any indicated studies should be performed and the following items should be addressed: 

a. Elicit from the Veteran details about the situation when he experienced problems with his claimed smell disorder.  Indicate whether there are any objective medical indications that the Veteran is suffering from muscle and joint pain. 

b. State whether the Veteran's smell symptoms are attributable to a diagnosed or undiagnosed illness. 

c. If the Veteran's symptoms are attributable to a diagnosed illness(es), is there a 50 percent probability or greater that it had its onset in service or is otherwise related to an incident in service? 

d. Is there a 50 percent or better probability that a smell disorder was either (1) caused by or (2) is aggravated by the Veteran's service-connected PTSD or any other service-connected disorder.    

e. If the examiner determines that the Veteran's smell disorder is aggravated  (i.e., permanently worsened) by  PTSD or any other service-connected disorder, the examiner should identify the percentage of disability which is attributable to the aggravation.  See 38 C.F.R. § 3.310 (as in effect prior to October 10, 2006); Allen v. Brown, 7 Vet. App. 439 (1995). 

The reviewer must provide supporting rationale for the opinions rendered, cite to the relevant evidence of record, and reconcile any contradictory evidence of record. 

If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.  See Jones v. Shinseki, 23 Vet. App. 382 (2010). 

7.  Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed migraine headaches.  The claims folder, to include a copy of this remand and any additional evidence secured, must be made available to and reviewed by the examiner prior to completion of the examination report, and the examination report must reflect that the claims folder was reviewed.  Any indicated studies should be performed and the following items should be addressed: 

a. Is there is a 50 percent or better probability that any currently diagnosed disorder is related to the Veteran's military service. 

b. Is there a 50 percent or better probability that the disorder was either (1) caused by or (2) is aggravated by the Veteran's service-connected PTSD or any other service-connected disorder.    

c. If the examiner determines that the Veteran's disorder  is aggravated  (i.e., permanently worsened) by  PTSD or any other service-connected disorder, the examiner should identify the percentage of disability which is attributable to the aggravation.  See 38 C.F.R. § 3.310 (as in effect prior to October 10, 2006); Allen v. Brown, 7 Vet. App. 439 (1995). 

The reviewer must provide supporting rationale for the opinions rendered, cite to the relevant evidence of record, and reconcile any contradictory evidence of record. 

If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.  See Jones v. Shinseki, 23 Vet. App. 382 (2010). 

8.   Notify the Veteran that it is his responsibility to report for the scheduled VA examinations, and to cooperate in the development of the claims.  The consequences for failure to report for a VA examination without good cause may include denial of the claims.  38 C.F.R. §§ 3.158, 3.655 (2011).  In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address.  It must also be indicated whether any notice that was sent was returned as undeliverable.  Copies of all documentation notifying the Veteran of any scheduled VA examination must be placed in the Veteran's claims file.

9.  Upon completion of the above examinations, review the examination reports for specific compliance with the remand order.  Any deficiencies should be corrected prior to recertification to the Board.  

10.  After the development requested above has been completed to the extent possible, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal.  If the decision remains unfavorable to the Veteran, an SSOC based on review of all evidence associated with the claims folder.  The Veteran and his representative should be provided with the SSOC and an appropriate period of time should be allowed for response.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).




______________________________________________
J. K. BARONE
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs