Citation Nr: 1312899 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 10-28 922 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE 1. Entitlement to service connection for a back condition, to include as due to an undiagnosed illness. 2. Entitlement to service connection for a skin rash, to include as due to an undiagnosed illness. 3. Entitlement to an initial disability rating in excess of 10 percent for tremors, muscle spasms, left lower extremity due to an undiagnosed illness. 4. Entitlement to an initial disability rating in excess of 10 percent for tremors, muscle spasms, right lower extremity due to an undiagnosed illness. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. WITNESSES AT HEARING ON APPEAL The Veteran and Spouse ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1985 to October 1988 and December 1990 to September 1991, including service in the Southwest Asia Theater of Operations. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. A Travel Board hearing was held before the undersigned Veterans Law Judge (VLJ) in November 2011. A transcript from that hearing was associated with the Veteran's file. The issues of entitlement to service connection for a back disability, entitlement to an initial disability rating in excess of 10 percent for left lower extremity, tremors and muscle spasms due to an undiagnosed illness and entitlement to an initial disability rating in excess of 10 percent for right lower extremity, tremors and muscle spasms due to an undiagnosed illness 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 The Veteran has cholinergic urticaria, a known clinical diagnosis, which was first manifested after service, and which has not been credibly or competently linked to service. CONCLUSION OF LAW The criteria for service connection for a skin rash, to include as due to an undiagnosed illness have not been met. 38 U.S.C.A. §§ 1110, 1117, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F3. 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In this case, the duty to notify was satisfied by way of a letter sent to the Veteran in October 2008 that fully addressed all notice elements and was sent prior to the initial adjudication of his claim in May 2009. The letter informed him of what evidence was required to substantiate the claim and VA's respective duties for obtaining evidence. He was also asked to submit evidence and information in his possession to the RO. Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO obtained the Veteran's service treatment records and VA treatment records. In addition, the Veteran was afforded VA examinations in February 2009 and April 2010. The Veteran was also afforded a hearing before the undersigned VLJ in which he presented oral argument in support of his skin disorder claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the Veteran's claim. The Veteran's representative stated that they would be submitting additional private medical treatments records and the VLJ held the record open for 60 days to afford the Veteran the opportunity to submit the additional evidence. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board is not aware, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. Therefore, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). 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, or to a degree of 10 percent or more not later than December 31, 2016. 38 C.F.R. § 3.317(a)(1). 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); 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). 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). 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 1 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. "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). 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). For purposes of 38 C.F.R. § 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). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson 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, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Veteran contends that his skin disorder, a rash, is due to an undiagnosed illness which resulted from his service in the Persian Gulf. The Veteran's service treatment records show complaints in August 1988, for a rash due to exposure to poison oak. The Veteran was treated and no recurrent symptoms were noted. In addition, the Veteran's separation examination is silent for a skin disease upon separation. In a VA examination report dated in March 2009, the Veteran noted that he began developing small, itchy, pimple-like bumps in 1992. The Veteran indicated that the bumps would last up to 2 hours. The examiner diagnosed the Veteran with (presumed) cholinergic urticaria. In a VA examination dated in April 2010, the examiner noted that when the Veteran became overheated, the Veteran would break out in a rash. The Veteran was again diagnosed with cholinergic urticaria. At the November 2011 Travel Board hearing, the Veteran stated that while in service, he was exposed to uranium which was used in ammunition. He stated that the first time he observed the rash was after he was discharged from service. He testified that after physical exertion or when he was exposed to heat, the rash would form. The Veteran's wife stated that the skin disorder began over ten years ago. As stated above, in some cases, those who served in the Southwest Asia Theater of Operations can be service connected for illnesses related to a chronic disability described as a medically unexplained chronic multisymptom illness, a symptom of which can be unexplained rashes or other dermatological signs and symptoms. In this case, however, the Veteran has been diagnosed with a specific disability, i.e., cholinergic urticaria. Accordingly, he may not be granted service connection for an undiagnosed illness under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317. Similarly, service connection on any other theory of entitlement is not warranted. Service treatment records are negative for his current skin rash diagnosis or similar complaints, and the Veteran acknowledges that the onset of his skin disorder occurred after separation. Further, no competent and probative evidence which shows that the skin rash is related to service is of record. The Veteran has not provided any medical opinions in this regard and the only evidence in support of service connection are the contentions of the Veteran and his wife. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, establishing a relationship between the Veteran's current condition and his military service falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." As such, the evidence of record demonstrates no relationship between the Veteran's current rash disorder and any in-service injury or disease. Thus, service connection for a skin disorder is not warranted. The Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, it is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a skin rash is denied. REMAND The Veteran contends that his current back condition is due to his military service. Service treatment records reflect complaints and treatment for back pain. (See April 1991 entry.) At the November 2011 Travel Board hearing, the Veteran indicated that since separation from service, he had continuously experienced back pain and had been receiving medical treatment since discharge. He noted that he had been treated by a chiropractor in Pawhuska, Oklahoma, in 1991. He also stated that he had been treated by a private chiropractor, Dr. Brown, from 1994 to 2008. These treatment records are not currently associated with the Veteran's claims file. In addition, the Veteran stated that he had recently begun seeing Dr. Hogin twice a month for treatment. Thus, on remand, the Veteran should be asked to identify any private treatment relevant to his back condition the records of which should be sought, including from Dr. Brown, Dr. Hogin and the private chiropractor in Oklahoma. The Veteran also stated that he had been receiving medical treatment from the VA medical center. The Board notes that the most recent VA treatment records are current only as of January 2011. As there are potentially outstanding VA medical records relevant to the appeal, there is a duty to obtain such records. See 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992). In addition, in the April 2010 VA examination, the examiner diagnosed the Veteran with degenerative joint disease. However, no opinion regarding the etiology of the back disorder was given. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, once the records are associated with the file, the RO should request that the examiner who conducted the April 2010 VA examination, prepare an addendum to determine whether the Veteran's current back disorder is related to his military service. Finally, in a May 2010 rating decision, the RO granted service connection for left and right lower extremity, tremors and muscle spasms due to an undiagnosed illness, each evaluated at 10 percent disabling. Subsequently, in July 2010, the Veteran submitted a written statement and expressed his disagreement with the disability ratings assigned. The Board construes the Veteran's July 2010 statement as a timely notice of disagreement (NOD) with regards to the May 2010 rating decision. As such, it is found that the RO should issue the Veteran a statement of the case (SOC) based on the NOD filed. Under these circumstances, the Board is obliged to remand these issues to the RO for the issuance of a statement of the case. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Accordingly, the case is REMANDED for the following action: 1. Issue the Veteran an SOC on the issues of an initial disability rating in excess of 10 percent for left lower extremity tremors and muscle spasms, due to an undiagnosed illness and an initial disability rating in excess of 10 percent for right lower extremity tremors, and muscle spasms due to an undiagnosed illness. The Veteran and his representative should be clearly advised of the need to file a substantive appeal if the Veteran wishes to complete an appeal of these issues. If and only if an appeal of these issues is perfected, then those issues must be returned to the Board for further appellate consideration, as appropriate. 2. Ask the Veteran to provide the names, addresses, and approximate dates of treatment of all VA and private health care providers, including Dr. Brown, Dr. Hogin and the private chiropractor in Oklahoma, who have treated his back disability. After securing any necessary releases, the RO/AMC should request any records identified. If any requested records are unavailable, then the file should be annotated as such and the Veteran should be so notified. Obtain outstanding VA treatment records dating since January 2011. 3. Then, return the claims folder to the April 2010 VA examiner for an addendum. If the examiner is no longer available, or if that examiner determines that another examination would be helpful, the Veteran should be scheduled for a new VA examination. The examiner must review the claims folder and note such review in the report. The examiner is asked to provide an opinion to the following question: Is it as least as likely as not that the Veteran's current back disability had its onset in service or is otherwise related to a disease or injury in service? The examiner should provide a supporting rationale for the opinion provided. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide a reason why this is so, and state whether there is additional evidence that would permit the opinion to be rendered. 4. After completion of the above development, the Veteran's claim should be readjudicated. If the claim remains denied, he should be provided with a supplemental statement of the case and be given an opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The appellant 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. 2012). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs