Citation Nr: 1300706 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 04-24 659 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUE 1. Entitlement to service connection for granuloma annulare to include as due to a claimed undiagnosed illness. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: James G. Fausone, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran had active military service from December 1990 to June 1991. He also had extensive service in the Reserve until February 1997 when he retired. This matter comes before the Board of Veterans' Appeals (Board) on appeal from both a November 1998 and June 2000 rating decision by the RO. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in January 2007. In May 2007 and October 2008, the Board remanded the issue on appeal to the RO, via the Appeals Management Center (AMC) for further development. In August 2009, the Board denied the Veteran's claim. By Order dated in January 2010, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion, vacating the August 2009 decision and remanding the matter to the Board for additional consideration. In November 2011, the Board again denied the Veteran's claim. The Veteran subsequently appealed this decision to the Court. In September 2012, the Court granted another Joint Motion and remanded the matter to the Board for action consistent with the terms of such motion. In November 2012, the attorney submitted additional argument with a waiver of RO jurisdiction. See 38 C.F.R. § 20.1304 (2012). The Virtual VA eFolder has been reviewed. In March 2010, the RO denied the Veteran's claim of service connection for PTSD. This issue is being remanded to the RO via the AMC, in Washington, DC. FINDINGS OF FACT 1. The Veteran is not shown to have served in Southwest Asia during the period of the Persian Gulf War. 2. The Veteran is not shown to have manifested complaints or findings referable to granuloma annulare during his period of active service or for several years thereafter. 3. The Veteran is not found to have presented credible lay assertions sufficient to establish a continuity of symptomatology referable to the claimed granuloma annulare following his period of deployment during active service. 4. The currently demonstrated granuloma annulare is not shown to be due to the exposure to hazardous materials in connection with his duties while deployed during his period of active service in the Persian Gulf War or another event or incident of the Veteran's active service or any period of active duty for training. CONCLUSION OF LAW The Veteran's disability manifested by granuloma annulare is not due to disease or injury that was incurred in or aggravated by his period of active service or any period of active duty for training. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The requirements of the VCAA (Veterans Claims Assistance Act) have been met. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. There is no issue as to providing an appropriate application form or completeness of the application. By correspondence dated in July 2001, March 2004, March 2006, and June 2007, VA has notified the Veteran of the information and evidence needed to substantiate and complete a service connection claim, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain. The Veteran has also been notified how VA assigns disability ratings and effective dates. The claim was most recently readjudicated in the March 2009 supplemental statement of the case. VA has also satisfied its duty to assist the Veteran. The claims folder contains available service treatment records, post-service VA medical records, and various private medical records. The Veteran has not specifically identified additional relevant records that should be obtained. The Veteran was afforded VA examinations in March 1997, December 1997, March 2008 and April 2008, with addendum in December 2008. The Board also had the claims file reviewed by a VA medical expert, who gave an opinion in July 2009. An addendum opinion was obtained from a VA Chief of Dermatology in May 2011. The medical opinions are considered adequate and additional examination and/or opinion is not needed at this time. The Veteran was afforded a meaningful opportunity to participate in the adjudication of his claim and on review, there is no evidence of VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. II. Service Connection for Granuloma Annulare Service connection may be granted for disability resulting from disease or injury incurred or aggravated during a Veteran's active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish entitlement to service connection for a present disability the 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran asserts that his granuloma annulare is a result of his military service; specifically, from his work as an assistant to a forensic pathologist when he conducted post-mortem examinations on soldiers killed in the Persian Gulf area. The Board notes that VA may pay compensation to a Veteran who served on active duty in the Armed Services in the Southwest Asia Theater of Operations during the Persian Gulf War with a qualifying chronic disability. 38 U.S.C.A. §§ 1117, 1118; 38 C.F.R. § 3.317. In this case, service records do not show that the Veteran served in Southwest Asia during the Persian Gulf War. The Veteran asserts that his duty in the morgue at Landstuhl Army Medical Center exposed him to harmful toxins from the Persian Gulf area and that he should be afforded the same "presumptions" as any service member who was physically present in Southwest Asia. However, 38 C.F.R. § 3.317 specifically defines a "Persian Gulf Veteran" as a Veteran who served on active duty in the Armed Services in the Southwest Asia Theater of Operations during the Persian Gulf War. See 38 U.S.C.A. § 1117(f). By the plain meaning of this regulation, this Veteran is not a member of the class. For these reasons, the Board finds that 38 C.F.R. § 3.317 does not apply to this Veteran's claim. The Board will accordingly proceed with consideration of service connection on a direct basis. The Veteran's service treatment records include an April 1991 Report of Medical History for the Veteran's redeployment. The Veteran stated that he was in excellent health and had no skin problems. A June 1994 VA record shows that the Veteran was seen with various complaints, including a rash on his leg. He was referred to a physician who noted a history of an inguinal rash for three years. A January 1997 VA record shows the Veteran was seen for a primary care referral. A history of joint pain was documented, and it was specifically noted that there was no rash. A February 1997 VA record notes that he had Persian Gulf service from December 1990 to July 1991 and that, since the Gulf, he noticed a rash on his hands and clear fluid filled blisters. A March 1997 VA record documents complaints of blisters on his hands, by his cuticles, groin area, and chest. On physical examination, the skin was clear. At a March 1997 VA examination, the Veteran was noted to have been a forensic physician's assistant for 39 years. The VA examiner stated that he had 2 to 3 small red areas on his hands and wrists; however, they were too small and not diagnosable. In a November 1997 statement, the Veteran's spouse reported that, since returning from Desert Storm, the Veteran had had severe rash outbreaks on both hands and in the groin area. The records from the Nassau County Medical Center show that the Veteran was seen in the dermatology clinic in November 1997. He reported having a nonpruritic, constant rash of the hands and fingers, bilaterally, since 1991. He reported being exposed to "Sarin" chemicals in the Gulf War and believed this eruption was the result of this. Assessment was that of granuloma annulare. A November 1997 statement from a VA physician, Dr. E.P., indicates that the Veteran had raised plaques on the dorsum of both hands of unclear etiology. The Veteran had a VA examination in December 1997 and stated that his skin condition began in 1991 as a rash on his groin, chest and hands. The VA examiner noted that the Veteran did not have a rash on his chest, but did have one on his groin and hands. He diagnosed the Veteran with granuloma annulare. A December 1998 statement from a private physician, Dr. E.G., indicates that the Veteran was seen for visits in 1994 and 1997. His visits revealed no evidence of dermatopathology and he did not present with annular patchy skin changes at the time of his second visit in 1997. At the time of the statement, he presented with skin changes on the hands consistent with granuloma annulare. At a March 2008 VA examination, the Veteran stated that his skin condition had been ongoing since 1990. On examination, he had an erythematous rash that was in a semicircular pattern on the dorsum of the left middle finger and undersurface of the right palm. The VA examiner diagnosed the Veteran with granuloma annulare and stated that this was a rash of unknown etiology and, as such, he could not find information in the claims file that would provide a nexus between the Veteran's current problems and events in service. In April 2008, the Veteran was seen in consultation with a VA dermatologist who confirmed the diagnosis. It was noted that the condition had not changed since March 2008, nor had the opinion. A textbook article was enclosed, which explained the pathophysiology of the aforementioned skin lesion. In addition, the VA examiner offered a December 2008 addendum and said that the claims file had been reviewed and that his opinion remained the same. In June 2009, the Board requested an opinion by a VHA medical specialist that was rendered in July 2009. The VA medical specialist stated that the Veteran reported a history of having skin rashes over his hands, chest and groin area that dated back to 1991; however, the diagnosis and treatment were unknown and the rashes on the chest and groin area had resolved completely. The Veteran was noted to have been diagnosed with granuloma annulare in November 1997 and treated with topical steroid preparation for skin rashes on his hands with no obvious therapeutic response. The VA medical specialist mentioned that granuloma annulare was a chronic skin disorder of unknown etiology and could last several years and that 40 percent of patients with granuloma annulare had a history of spontaneous involution. Granuloma annulare was noted to be associated with diabetes, HIV infection and other disease. It had also been reported that granuloma annulare could follow insect bites, sun exposure, tuberculin skin tests, ingestion of medications including allopurinol, anti-TNF agents, pegylated interferon alpha and amoldipine, trauma and viral infection, which included hepatitis B, hepatitis C, Borrelia, HIV, and Epstein-Barr virus infections. Granuloma annulare was also reported to occur in identical twins suggesting hereditary disposition. The VA medical specialist noted that the Veteran did not have a prior record of hepatitis infection, Borrelia infection, HIV infection or EBV infection. He also did not have a prior record of using medication such as allopurinol, alpha interferon or anti-TNF agents or being diabetic. This was noted to suggest that his granuloma annulare was "least likely related to medication, infection or diabetes." The VA medical specialist concluded that, from all possible history, information, and the claims file, the Veteran's granuloma annulare was "least likely related to his service." Pursuant to the January 2010 Joint Motion, the medical opinion was deemed to be confusing in stating that the Veteran's skin disorder was "least likely related to his service" and "least likely related to medication, infection, or diabetes." Moreover, the VA medical specialist also was noted not to have provided a rationale or specific response to the question that had been posed. In January 2011, the VHA medical specialist was requested to provide an addendum that clarified the etiology of the skin condition (i.e., "whether it was at least as likely as not that the granuloma annulare was the result of exposure of hazardous material in performing post-mortem examinations on soldiers killed in the Persian Gulf or any other incident during active service"). In May 2011, the medical specialist, in essence, stated that there was no evidence in the literature to suggest such an association with or any possible causative link to service. He again noted that the granuloma annulare was not an uncommon condition diagnosed in typical non-military based dermatology clinics. He further stated that "[t]his benign, self-resolving condition [was] idiopathic but ha[d] been associate[ed] with viral infections and medications." He referred to one large study of skin disease in a deployed dermatology clinic in Iraq where 22 of 2,696 deployed service men and women who presented to the clinic had granuloma annulare. Journal of Drugs in Dermatology 2010, March, pp. 210-214 (citing to Henning J. Scott, Firoz Bahar F. Combat Dermatology: the prevalence of skin disease in a deployed dermatology clinic in Iraq.) The overall prevalence could not be calculated without knowing the total number of deployed service men and women. Regardless, a comparison with the prevalence of granuloma annulare in non-deployed service men and women could not be done because that information was not known. In any event, this study would have no applicability to the Veteran's case because he did not serve in Iraq or identify any specific exposure in connection with his period of active service that could be linked to the claimed granuloma annulare. The Veteran asserts that the specialist provided a non-opinion. The Board disagrees and finds that both opinions clearly found that the Veteran's granuloma annulare was not at least as likely as not due to the exposure to hazardous materials in connection with his duties in performing post-mortem examinations and based on the supporting rationale that the condition was idiopathic in nature and was not shown in the medical literature to be linked to any exposure of the type claimed by the Veteran, specific either to his duties or his location while deployed during his period of active service. As previously noted, the Veteran is not shown to have served in the Persian Gulf and is not deemed to have the requisite service so as to be extended the same presumptions as an actual "Persian Gulf Veteran." The specialist reviewed the claims file and the Veteran's prior medical history before rendering his opinion. Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet. App. 121, 123 (1991)) (finding a medical opinion adequate when it is based upon consideration of the Veteran's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's "evaluation of claimed disability will be a fully informed one.") The Veteran referenced a PubMed article that showed an association between chemicals from Kodak DryView laser imaging film and granuloma annulare. (See also June 2011 Appellant-Attorney's Response). He essentially relies on this article for the proposition that granuloma had been associated with chemical exposure. (See June 2011 Medical Opinion Response). However, based on a careful review of the abstract, the study is found to have pertained to FAZ (an exhaust product of Kodak DryView laser image film). Moreover, the study appeared to only pertain to one person (Veteran only submitted an abstract not the entire article). The Board finds this study unpersuasive and not probative given its limited nature and sample size. Evan assuming that this statement does provide evidence of a nexus between granuloma annulare and chemicals in general, it does not provide evidence of a nexus between the claimed granuloma annulare and any identified chemical exposure in service. See Mattern v. West, 12 Vet. App. 222, 228 (1999) ("Generally, an attempt to establish a medical nexus to a disease or injury solely by generic information in a medical journal or treatise is too general and inconclusive." (quoting Sacks v. West, 11 Vet. App. 314, 317 (1998))) (emphasis added). Moreover, such general medical literature is even less probative where, as here, there is a medical opinion in the record finding that there was no nexus between the claimant's current disability and any in-service injury and offering an alternative explanation for the current disability based on facts specific to the claim. Cf. id. at 228 (explaining that medical treatise evidence "can provide important support when combined with an opinion of a medical professional") (emphasis added). Here, there is no evidence that the Veteran was exposed to FMZ in service. In addition to his arguments regarding a causal relationship to active service, the Veteran has also asserted that his skin condition began during such service. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In determining the weight to be assigned to evidence, the Board notes that credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). In the November 2011 decision, the Board determined that the Veteran's lay assertions regarding the onset of his skin condition were not credible. Pursuant to the September 2012 Joint Motion, the parties agreed that the Board failed to provide adequate reasons or bases for making this finding. The Joint Motion notes that the Board determined the appellant's lay assertions regarding the onset of his skin condition were not credible because they were not consistent with earlier statements made while the Veteran was in active service. The Board cited to the April 1991 service record wherein the Veteran denied any skin conditions. The Joint Motion points out, however, that the appellant was not discharged until June 1991, two months after this examination. Further, in a June 1994 VA record, the appellant reported that he experienced a skin condition three years earlier and a private medical record noted that the Veteran had a rash on his hands and fingers since 1991. The Joint Motion states that "it [was] possible that the Appellant could have had a skin condition during active service after the April 1991 inservice medical notation but before his discharge two months later in June 1991." The parties agreed that the Board should have discussed this evidence and, further, that the Board failed to address the credibility of the appellant's wife's lay statement that he had a severe rash outbreak on his hands and groin since returning from Desert Storm. In November 2012, the attorney argued that the Veteran had consistently stated that he suffered from a rash and other skin ailments from active service to the present. His first statements were entered into the medical records before he filed a claim for benefits, giving added credibility to his veracity in this regard. Further, the Veteran's statements are corroborated by lay statements from his spouse. The attorney requested that the Veteran's lay testimony be found both credible and sufficient to establish a nexus to active service. In an associated case summary, the attorney argued that between the April 1991 report of medical history and the Veteran's discharge, the Veteran was not given another examination nor was there a document which indicates he did not begin to suffer from skin problems during that time. He stated that there really was not any conflicting statements made by the Veteran and the Board was incorrect in dismissing his lay testimony as not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). The attorney further argued that the Veteran was competent to comment that his skin condition began in 1991 and existed up to the present time. For various reasons, the Board does not accept the Veteran's statements regarding the onset of his skin condition and does not find the overall evidence of record consistent with a finding that any currently diagnosed skin condition began during a period of active service. Specifically, that such manifested between April and June 1991. First, the Veteran's statements that his skin condition began during service are essentially self serving. See Pond v. West, 12 Vet. App. 341 (1999) (although the Board must take into consideration the Veteran's statements, it may consider whether self-interest may be a factor in making such statements). As discussed, the April 1991 report of medical history documents the absence of any skin complaints or condition at that time. To now argue that the skin condition began following the affirmative denial of symptoms and prior to discharge two months later is clearly in the Veteran's own interest. To argue otherwise would be detrimental to the claim. Second, the Veteran has provided inconsistent statements regarding the history of his skin condition. For example, in June 1994, he reported having an inguinal rash for three years but did not indicate any rash of the hands or fingers. In November 1997, however, he reported a constant rash on the hands and fingers since 1991, as well as redness of the groin since 1991. The Veteran's reports of continuity are also not necessarily supported by the evidence of record. In this regard, the Board notes that several records indicate that the skin was clear or no rash was documented. The December 1998 statement from Dr. E.G. states that there was no evidence of dermatopathology at his 1994 visit. The Veteran also provided some inconsistent information regarding the circumstances of his service. That is, in various VA records, he appears to report that he served in the Persian Gulf. Indeed, a March 1997 VA record documents his report that while he was in Germany, he occasionally flew to Kuwait City to pick up material. However, in a February 2004 statement, he specifically stated that he did not serve in Saudi Arabia or the Southwest Asia continent in 1991. As discussed earlier, the Veteran's service records do not substantiate service in Southwest Asia. Third, the Board notes that, at the videoconference hearing, the Veteran testified that while serving in Germany, it was brought to his attention many times that something was wrong with his hands. For example, individuals in the commissary and at the barber shop would notice these things on his hands and that was how he realized that something on his skin was not normal. The Board notes that the Veteran did not seek any treatment for a skin condition until approximately 1994 and that granuloma annulare was not diagnosed until 1997. If his condition became so obvious in such a short period (between April 1991 and June 1991) and was "severe" since returning home, the Board questions why the he did not seek treatment prior to approximately 1994. The Board has considered his testimony that he did not go to the doctor because he wanted to continue his military career, but under the circumstances of this case, does not find it persuasive. On review, the absence of treatment or pertinent diagnosis for several years following service clearly weighs against the Veteran's claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board has considered the statement from the Veteran's spouse, but does not find it sufficient to establish in-service onset and continuity particularly given the above findings regarding the Veteran's credibility. Additionally, there is no indication that she is a medical professional or that her statements are sufficient to establish a medical nexus between any skin condition following discharge and currently diagnosed granuloma annulare. Finally, the Board acknowledges the Veteran's contentions that the currently diagnosed granuloma annulare is related to active military service. Although the Veteran may have medical training and may meet the requirement of section 3.159(a)(1) as one competent to provide diagnoses, statements or opinions, the Board finds his statements to have limited or no probative worth when compared to the opinions provided by the impartial medical specialists, who would have more extensive medical expertise in the field of dermatology. Cox v. Nicholson, 20 Vet. App. 563, 568-70 (2007). The Board notes that the findings of a physician are medical conclusions that the Board cannot ignore or disregard. Willis v. Derwinski, 1 Vet. App. 66 (1991). However, the Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). Moreover, there is no medical evidence in the claims file to support the Veteran's assertions that his skin condition is due to conducting post-mortem examinations on deceased soldiers killed during the Persian Gulf War. After a careful review of the Veteran's testimony and his claims file, the Board finds that his granuloma annulare is not a result of his active service; nor can he be afforded any presumption based on his service since he is not a "Persian Gulf Veteran" under 38 U.S.C.A. § 1117(f). Therefore, service connection must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for granuloma annulare to include as due to a claimed undiagnosed illness is denied. REMAND A review of Virtual VA shows that, in March 2010, the RO denied the Veteran's claim of service connection for PTSD. The Veteran was notified of this decision by letter dated March 22, 2010. Although not contained in the claims folder or Virtual VA eFolder, a review of the Veterans Appeals Control and Locator System (VACOLS) shows that a Notice of Disagreement with the March 2010 rating decision was received in October 2010. There is no indication that a Statement of the Case was furnished addressing this issue and thus, a remand is required. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, this additional matter is REMANDED to the RO for the following action: 1. The RO should determine whether there is a temporary folder and if so, the contents of such folder, to include the October 2010 Notice of Disagreement, should be associated with the Veteran's claims folder or Virtual VA eFolder. 2. Then, the RO must issue a Statement of the Case addressing the issue of service connection for PTSD. The Veteran is advised that the Board will not consider this issue on the merits unless a timely Substantive Appeal is filed by the Veteran. 38 U.S.C.A. § 7104 (West 2002). Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter or 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. 2012). ____________________________________________ STEPHEN L.WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs