Citation Nr: 1300451 Decision Date: 01/07/13 Archive Date: 01/11/13 DOCKET NO. 10-06 488 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for cutaneous discoid lupus erythematosus, to include as due to undiagnosed illness. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from March 1981 to July 1983 and from May 1986 to March 1995, to include service in the Southwest Asia theater of operations during the Persian Gulf War. This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2008 rating decision of the St. Paul, Minnesota Department of Veterans Affairs (VA) Regional Office (RO). In October 2012, the Board requested a medical expert opinion from the Veterans Health Administration (VHA) pursuant to 38 C.F.R. § 20.901(a). FINDING OF FACT Competent medical evidence shows that the Veteran's cutaneous discoid lupus erythematosus is causally related to his exposure to environmental hazards during his service in the Southwest Asia theater of operations during the Persian Gulf War. CONCLUSION OF LAW Service connection for cutaneous discoid lupus erythematosus is warranted. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. As the decision regarding the claim of service connection is favorable to the Veteran, no further action is required to comply with the VCAA. II. Legal Criteria, Factual Background, and Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in service. This may be accomplished by affirmatively showing inception during service. 38 C.F.R. § 3.303(a). 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 in service. 38 C.F.R. § 3.303(d). Service connection may be established on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability resulting from undiagnosed illness that became manifest either during active 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 not later than December 31, 2011, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1). A qualifying chronic disability means a chronic disability resulting from an undiagnosed illness; or a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome; or any diagnosed illness found by VA to warrant a presumption of service connection. Compensation is not payable under these provisions if, among other things, there is affirmative evidence that an undiagnosed illness was not incurred during active duty in the Southwest Asia theater of operations, or there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. If there is a diagnosis for the claimed disability, it is not an undiagnosed illness and the claim will be evaluated under the usual provisions for service connection. The term "Persian Gulf Veteran" means a Veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(d)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. "A veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran alleges that he has cutaneous discoid lupus erythematosus that is attributable to service, specifically to his exposure to environmental hazards while serving in Southwest Asia. He asserts that he does not have a family history for lupus or any other autoimmune disease, and that he did not have the condition prior to his service in Southwest Asia. The Veteran served on active duty from March 1981 to July 1983 and from May 1986 to March 1995. His second period of service included service in the Southwest Asia theater of operations during the Persian Gulf War, from June 1991 to September 1991. Service treatment records from the Veteran's first period of service, as well as a separation physical examination report from his second period of service, are unavailable. Accordingly, VA has a heightened duty to assist him in developing his claim. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The Veteran's available service treatment records are silent for any complaints, findings, treatment, or diagnoses related to a skin disease, to include cutaneous discoid lupus. After service, the Veteran's medical treatment records show that skin lesions were first noticed in approximately March 2006. On a May 2006 private treatment record, T.T., M.D., indicated that the Veteran was seen with complaints of a lesion on his nose that was discovered two months previously, which was growing larger. The assessment at that time was a neoplasm of the skin of uncertain behavior. The Veteran was referred for further evaluation and treatment. A September 2006 biopsy report of a lesion on the Veteran's nasal tip indicated a diagnosis of lupus erythematosus. Subsequent VA medical records show that the lupus was of the discoid type. A November 2007 VA dermatology clinic record noted that the Veteran had no systemic involvement by a current workup. In support of his claim for service connection for the ongoing cutaneous discoid lupus, the Veteran has submitted articles obtained through the internet that describe the environmental hazards to which he was exposed in Southwest Asia, to include an article on the 1991 Kuwait Oil Fires. He has also submitted an article, created in April 1999 and last revised in April 2001, by M.H., Ph.D., chief scientific adviser to the Gulf Veterans Association in Britain, titled "Gulf War Illnesses/Syndrome Information for Clinicians." According to this author, there is a "very wide extent of autoimmune diseases amongst many Gulf Veterans," including systemic lupus erythematosus (SLE). He also states that "some service personnel were exposed to drenching with crude oil and the dense smoke from the oil well fires - a cocktail of known injurious chemicals with a variety of damaging effects, particularly on the respiratory, skin, and immune systems." The article also briefly discusses the ramifications of using Squalene as an adjuvant for experimental vaccines, particularly for HIV, influenza, and anthrax. It notes that there have been several studies in which it was indicated that "95% of USA Veterans suffering from [Gulf War Illness/Syndrome] tested positive whilst 100% of non-deployed but vaccinated personnel were also positive. The most common autoimmune disease is lupus, SLE. Lupus is predominantly a disease of women, female/male ratio circa 14/1, but amongst [Gulf War Veterans] it is found mostly amongst men." In a February 2010 substantive appeal statement, the Veteran identified Dr. J.M.A., an associate professor of medicine and co-director of the Lupus Center at the University of Pittsburgh, as someone who had been selected by the Department of Defense "to research the alarming rate of soldiers with lupus from Desert Storm and to date." The Veteran was afforded VA examinations in August 2008 and in September 2010 to ascertain whether his cutaneous discoid lupus erythematosus was related to his service, and specifically his environmental hazards exposure therein. In August 2008, the VA examiner opined that the Veteran's skin condition was "less likely as not a result of his military service time due to exposures in the Gulf War." The examiner stated that the cause of this condition was "unknown." She further noted that there was a 5 to 10 percent risk that the Veteran would eventually develop systemic lupus erythematosus. In September 2010, a different VA examiner opined that the Veteran's cutaneous discoid lupus erythematosus was "less than likely as not due to his active duty career." That examiner explained that "[d]iscoid lupus is basically an autoimmune disease, the etiology of which is undetermined," and stated that to answer the question of whether or not the Veteran's disease was related to anything that occurred in his military career, he "went through the entire chart and then went through [his] own resources on the Gulf War and went down and spoke to one of the past Chief of Dermatology at the Minneapolis VA Medical Center . . . where the veteran [was] being seen." The Board found that the VA medical opinions did not furnish adequate rationale to support the conclusions drawn. It was noted that the examiners stated that the cause of the claimed skin disability is unknown/ undetermined without explaining what could have caused the skin disability (if any), or why the fact that the cause of the claimed skin disability is unknown means that it could not have been caused by the environmental hazards to which the Veteran was exposed in service. As a result, in October 2012, the Board sought a VHA medical expert opinion, to determine the likely etiology of the Veteran's skin disease. The Board requested that a medical expert review the Veteran's claims file with particular emphasis on his postservice medical records, as well as the medical literature identified and/or associated with the record and the various medical opinions already of record. The examiner was asked whether it was at least as likely as not (a 50 percent or better probability) that the Veteran's cutaneous discoid lupus erythematosus was related to his service, to include his exposure to environmental hazards therein. It is presumed that the Veteran was exposed to environmental hazards, based on his confirmed service in Southwest Asia from June 1991 to September 1991. In a report dated in November 2012, the VHA examiner undertook a comprehensive review of the record, noting the pertinent concerns, clinical findings, medical literature, and medical conclusions that addressed the issue presented in this case. With rationale, the examiner concluded that the Veteran's cutaneous discoid lupus erythematosus was as likely as not related to environmental hazards to which he was exposed in service. She stated that it was well documented that auto antibodies can develop years before the onset of lupus symptoms, and that in this case there was a paucity of information concerning the risks of potential triggers. In view of the foregoing, there is satisfactory proof that the Veteran's cutaneous discoid lupus erythematosus is related to his exposure to environmental hazards during his Persian Gulf War period of service from June 1991 to September 1991. As noted, there are medical opinions of record, with inadequate rationale, that are unfavorable to the claim, and additional medical articles that appear to be favorable to the claim. The Board sought a medical opinion through the VHA to reconcile the disparities, which found that the evidence was at least in equipoise that exposure to environmental hazards during Persian Gulf War service had a role in the development of the Veteran's current cutaneous discoid lupus erythematosus. Acknowledging the conflicting medical evidence in the file that weighs both for and against the Veteran's claim for service connection, the Board nevertheless finds that the comprehensive review and discussion of the VHA examiner, in a report dated in November 2012, is particularly probative and entitled to great weight. Accordingly, there is competent evidence to support the claim that the Veteran's cutaneous discoid lupus erythematosus is etiologically related to his exposure to environmental hazards during his period of service from June 1991 to September 1991 in the Southwest Asia theater of operations during the Persian Gulf War. As the claimed condition is due to disease that was incurred in service, service connection for cutaneous discoid lupus erythematosus is granted. ORDER Service connection for cutaneous discoid lupus erythematosus is granted. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs