Citation Nr: 1328831 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 09-06 809 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a respiratory disorder, to include asthma (claimed as a cough). 2. Whether there is new and material evidence to reopen a claim for service connection for atopic dermatitis (claimed as a rash), to include as due to environmental hazards or as an undiagnosed illness. 3. Entitlement to service connection for inflammatory bowel disease (claimed as irritable bowel syndrome), to include as due to environmental hazards or as an undiagnosed illness. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran had active service from 1969 to March 1994, including service in the Persian Gulf from December 1990 to April 1991. She retired with more than 25 years of active service. Her awards and decorations include a Combat Action Ribbon. In April 2012, the RO issued a statement of the case which addressed claims of service connection for sleep apnea, numbness and severe stomach problems. The record before the Board, including the electronic record (Virtual VA) does not reflect that the Veteran has submitted a substantive appeal, or any communication suggesting an intent to appeal the outcome of those claims. No issue regarding these claims is before the Board at this time. In her February 2009 substantive appeal of the claims listed on the title page of this decision, the Veteran requested a hearing before the Board. In correspondence dated by the Veteran in May 2013 and received by the Board in June 2013, the Veteran withdrew her request for a hearing. Appellate review may proceed. FINDINGS OF FACT 1. To the extent that the Veteran has a respiratory disorder other than service-connected sinusitis and service connection rhinitis, manifested by wheezing, a cough, and shortness of breath, a diagnosis of asthma has been assigned for those symptoms, and the medical evidence is at least in equipoise to show that asthma manifested by those symptoms is related to environmental exposures the Veteran incurred during Persian Gulf service. 2. The 2004 rating decision that denied service connection for atopic dermatitis is final. 3. The Veteran's additional lay descriptions of continuous, although intermittent, skin symptoms, and her lay observations linking flare-ups of her skin disorder to flare-ups of disabilities for which service connection has been granted, which were not of record at the time of the 2004 denial, are new and material evidence sufficient to reopen the claim. 4. The Veteran's contention that skin manifestations of unknown etiology have been present chronically is supported by the medical evidence. 5. No etiology for the Veteran gastrointestinal symptoms, identified in parts as irritable bowel syndrome (IBS), has been determined; IBS is a medically unexplained chronic multisymptom illness which may be presumed related to her Persian Gulf service. CONCLUSIONS OF LAW 1. Resolving any reasonable doubt in the Veteran's favor, a respiratory disorder to include asthma was incurred in or as a result of active military service, including Persian Gulf service. 38 U.S.C.A. §§ 1110, 1117, 5103, 5103A, 5107(a) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.317 (2012). 2. New and material evidence having been presented subsequent to the 2004 denial of service connection for atopic dermatitis, the claim is reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2002 & Supp. 2010). 3. Resolving any reasonable doubt in the Veteran's favor, a skin disorder, to include atopic dermatitis was incurred in or as a result of active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(a) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309 (2012). 4. Resolving any reasonable doubt in the Veteran's favor, a gastrointestinal disorder, to include IBS, was incurred in or as a result of active military service, including Persian Gulf service. 38 U.S.C.A. §§ 1110, 1117, 5103, 5103A, 5107(a) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.317 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a 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; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). In this case, the Board is granting in full the benefits (service connection) sought on appeal. Accordingly, if any error was committed with respect to either the duty to notify or the duty to assist in relation to the granting of the service connection claim, such error was harmless and will not be further discussed. Under applicable law, service connection is granted if the evidence establishes that coincident with his service, the Veteran incurred a disease or injury, or had a preexisting injury aggravated, in the line of duty of his active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for certain chronic diseases, such as arthritis, when such disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. That an injury or event occurred in service alone is not enough. There must be chronic disability resulting from that injury or event. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. Service connection can also be found for any disease diagnosed after discharge, if all the evidence establishes it was incurred in service. Service connection requires that the evidence establish: (1) medical evidence of a current disability, (2) medical evidence, or lay testimony in some cases, that the injury or disease was incurred or aggravated during service, and (3) medical evidence of a nexus between the current disability and the in-service injury or disease. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of qualifying chronic disability 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 December 21, 2016, 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). In claims based on qualifying chronic disability, 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. 1, 8-9 (2004). Notably, laypersons are competent to report objective signs of illness. A "qualifying chronic disability" for purposes of 38 U.S.C.A. § 1117 is a chronic disability resulting from (1) an undiagnosed illness, or, (2) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or, (3), any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C.A. § 1117(d) warrants a presumption of service connection. 38 U.S.C.A. § 1117(a)(2); 38 C.F.R. § 3.317(a), (c). Effective July 13, 2010, VA has amended its adjudication regulations governing presumptions for certain Persian Gulf War Veterans. As revised, the provision clarify that chronic fatigue syndrome, fibromyalgia, and IBS are examples of medically unexplained chronic multisymptom illnesses, but not an exclusive list of such illnesses. 1. Claim for service connection for asthma In 1995, the Veteran reported complaints of facial tenderness, headaches, a history of allergic rhinitis for years, and use of over-the-counter medications. Allergic rhinitis was diagnosed. Over time, a diagnosis of sinusitis was also assigned. The Veteran complained of a cough, sneezing, and post-nasal drainage, among other symptoms. She began to complain of wheezing and shortness of breath. In 1995 she was granted service connection for sinusitis with allergic rhinitis. In 2007, a private provider, TRH, Jr., MD, opined that the Veteran had reactive airways disease that was more likely than not secondary to environmental exposures during military service in Kuwait. Dr. H. noted that, since her service, she had difficulty with persistent wheezing, coughing, and shortness of breath. At the time of VA examination conducted in July 2010, the examiner opined that the Veteran had dyspnea, wheezing, and coughing. See July 2012 VA examination report, page 16. The examiner assigned a diagnosis of asthma, and concluded that the Veteran's asthma was not connected to her service because there was no indication of these symptoms during the Veteran's service. The Board notes that the Veteran has complained of a cough, wheezing, and shortness of breath for many years. At times, these symptoms have been attributed to sinusitis or rhinitis, while other providers have assigned a diagnosis of asthma. There is a medical opinion that has diagnosed the Veteran's reactive airways disease, whether that be asthma or otherwise, as related to her service. The VA examiner who provided an unfavorable opinion in July 2010 did not discuss the fact that service connection was in effect for sinusitis and rhinitis, and did not discuss the Veteran's lay reports of continuing symptoms. The evidence is at least in equipoise. To the extent that the Veteran has a respiratory disorder other than sinusitis or rhinitis which is manifested by a cough, wheezing, or shortness of breath, including as asthma, that disorder is as likely as not related to her service. On that basis, service connection for asthma is granted. 2. Claim for service connection for a skin disorder In a February 2004 rating decision, the RO denied a claim for service connection for atopic dermatitis, on the basis that there was no clinical evidence that connected the Veteran's atopic dermatitis to her service or to any service-connected disability. The Veteran did not appeal that determination, and it became final. However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition. 38 U.S.C.A. § 5108 (2002); Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Under 38 C.F.R. § 3.156(a), evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is evidence which, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Whether new and material evidence is submitted is a jurisdictional test. If such evidence is not submitted, then the claim cannot be reopened, and is not subject to the Board's jurisdiction. 38 U.S.C.A. §§ 5108, 7104(b); Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). The Board must independently review the evidence to determine whether there is new and material evidence. Id. a. Request to reopen The Court of Appeals for Veterans Claim (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as enabling rather than precluding the reopening of a claim. The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which does not require new and material evidence as to each previously unproven element of a claim. It was indicated that it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would force the Veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA. Shade v. Shinseki, 24 Vet. App. 110 (2010). In this case, the Veteran has provided lay statements indicating that her atopic dermatitis started during her service or soon after discharge, and has required treatment continuously, although intermittently, over the years since her service discharge. The Board finds that this evidence is sufficient to meet the criteria for new and material evidence sufficient to reopen the claim. Therefore, the claim will be considered on the merits. b. Consideration of claim on the merits The Veteran has also provided lay statements linking episodes of increased skin symptoms to flare-ups of her service-connected disabilities or treatment of service-connected disabilities, especially with antibiotics or steroids. VA outpatient treatment notes reflect episodes of required treatment for skin disorders following treatment of service-connected disabilities with antibiotics or steroids, in particular. The examiner who conducted July 2010 VA examination stated that the Veteran's current skin disorder was not "associated with active duty." The examiner did not provide an explanation for this opinion. The examiner did note that, since the skin disorder was a diagnosed disorder, it could not be considered a manifestation of an undiagnosed disorder. The examiner did not discuss whether the diagnosed skin disorder was related to any service-connected disability. In particular, the Board notes that service connection for fibromyalgia, IBS, or any other medically-unexplained disability, had not been granted at the time of the VA examination. In this case, VA treatment records establish that the Veteran has manifested atopic dermatitis chronically for many years. The Board finds the evidence regarding continuity of symptomatology since service is in equipoise with the evidence against continuity. The Veteran's statements that her skin disorders began soon after service is competent evidence of chronicity of symptoms since service. The private treatment records show that she had recurrent skin symptoms even though such disorder was not diagnosed during the Veteran's earliest post-service VA examinations in 1995. Lay statements may also serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The record presents some evidence for and some evidence against the claim. The totality of the evidence is at least in approximate balance. The medical opinion against the claim is not more persuasive than the lay evidence favorable to the claim, since, as discussed above, the medical opinion does not address etiology, does not include a rationale, and does not address the disabilities for which service connection is now in effect. The evidence is essentially in equipoise. The Board will resolve that doubt in the Veteran's favor and grant service connection for a skin disorder. 3. Claim for service connection for IBS Following her service discharge in 1994, the Veteran sought service connection for "diarrhea" soon after. That claim was denied in 1996. In 2003, the Veteran sought service connection for acid reflux disease. That claim was denied because her acid reflux disease was not diagnosed in service or until at least several years elapsed after her service discharge. In 2007, the Veteran sought service connection for IBS. At the time of VA examination conducted in July 2010, the Veteran had anemia, which the examiner concluded was due to her Crohn's disease/IBS. The examiner also noted that the Veteran developed an enterophathic arthropathy associated with her Crohn's/IBS. The examiner concluded that the Veteran's GI symptoms were not manifested during her service and were not related to any specific exposure during service. The examiner did not provide any other etiologic explanation for the Veteran's IBS. IBS is a disorder which may be presumed service-connected for a Persian Gulf Veteran, if manifested to a 10 percent degree. IBS is rated under Diagnostic Code 7319. As the July 2010 VA examination reflects that the Veteran has symptoms of IBS, including anemia and enteropathic arthropathy, the manifestations of IBS meet or approximate the criteria for a 10 percent evaluation, that is, moderate disability due to irritable colon syndrome. The presumption of service connection for IBS, as afforded by 38 C.F.R. § 3.317, is sufficient to place the evidence at least in equipoise as to whether the Veteran's IBS is related to service. Accordingly, resolving doubt in the Veteran's favor, the Board finds that the criteria for service connection for IBS are met and service connection for this disability is warranted. ORDER The appeal for service connection for connection for a respiratory disorder, to include asthma, is granted, subject to law and regulations governing the effective date of an award of monetary compensation; the appeal is granted to this extent only. The appeal for service connection for atopic dermatitis is granted, subject to law and regulations governing the effective date of an award of monetary compensation; the appeal is granted to this extent only. The appeal for service connection for IBS is granted, subject to law and regulations governing the effective date of an award of monetary compensation; the appeal is granted to this extent only. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs