Citation Nr: 1330197 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 11-01 626 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for urticaria. ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from March 1989 to March 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. FINDINGS OF FACT 1. The Veteran served on active duty in Southwest Asia during the Persian Gulf War era. 2. The Veteran's complaints of a chronic rash has been diagnosed as urticaria. 3. The Veteran's statements as to the date of onset of his urticaria are inconsistent. 4. The medical evidence of record shows that the Veterans complaints of rash, diagnosed as urticaria, are not related to service or any exposure incurred therein. CONCLUSION OF LAW Urticaria was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1117, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). The Veteran has been provided the requisite notice with respect to his claim for service connection for rashes and urticaria in an August 2009 letter, which was prior to the initial RO rating decision denying the benefit sought. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). VA has obtained available service treatment records; service personnel records; private treatment records; VA medical records; VA examination reports, assisted the Veteran in obtaining evidence; and, afforded him the opportunity to present written statements and evidence. All known, identified, and available records relevant to the issue on appeal have been obtained and associated with the evidence of record and he has not contended otherwise. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran was afforded two VA examinations in conjunction with his claim for service connection for service connection for a skin disability and both are adequate. There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Complete copies of the Veteran's service treatment records are unavailable. After numerous attempts, VA has only been able to obtain partial copies of the Veteran's service treatment records and service personnel records. Service treatment records obtained include copies of some dental records and a copy of the Veteran's entrance examination report. Gobber v. Derwinski, 2 Vet. App. 470 (1992). The Veteran has been provided notice of the missing records and requested to submit any additional records he may have. Attempts to obtain additional records have been unsuccessful. Dixon v. Derwinski, 3 Vet. App. 261 (1992). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess, 19 Vet. App. at 486; Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Service connection may be granted for disability due to a disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110. 1131; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after separation, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established for a veteran who exhibits objective indications of chronic disability resulting from an undiagnosed illness which became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or after service, to a degree of 10 percent or more, not later than December 31, 2016. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317; 76 Fed. Reg. 81834 (Dec. 29, 2011). The Persian Gulf War period runs from August 2, 1990, to a date not yet determined. 38 U.S.C.A. § 101(33) (West 2002). Signs or symptoms which may be manifestations of an undiagnosed illness include, but are not limited to, signs or symptoms involving the skin. 38 C.F.R. § 3.317(b). In this case, the Veteran's discharge papers, DD 214, show that he served in the Southwest Asia Theater of Operations from October 1990 to April 1991. Therefore, he is a "Persian Gulf veteran" as defined by regulation. See 38 C.F.R. § 3.317. The Veteran's DD 214 confirms that he served on active duty from March 1989 to March 1992, and that he served in the Southwest Asia Theater of Operations from October 1990 to April 1991. In August 2009, the Veteran filed his claim for service connection for "rashes/chronic urticaria." He specifically indicated that the date of the onset of this disability was "approximately 2004" and that he had been treated at a VA hospital for this disability since 2008. In March 2008, a VA Persian Gulf War examination of the Veteran was conducted. At that time the Veteran reported that he began having skin symptoms two or three years earlier. He indicated that he would develop sudden onset of itching skin and a rash which sometimes resulted in whelps or bumps. Physical examination revealed his skin was red where he had scratched. There were some red blotchy areas of the forehead and collar area of the neck. The diagnosis was "pruritic rashes" and the Veteran was scheduled for a dermatology consultation. In April 2008, the scheduled dermatology consultation was conducted. The Veteran reported a two to three year history of a very itchy, transient, skin rash, which he reported he treated with Benadryl. He indicated that no lesions lasted for more than 24 hours. He did not report any specifically noted triggering factors. On examination, there were no visible lesions. The diagnosis was chronic urticaria. The examiner noted that in the majority of urticaria cases, no trigger is found and that the disorder typically resolves within a few years. The Veteran was prescribed a regimen of antihistamines to treat and control his symptoms. An April 2009 private psychology examination reports notes the presence of hives (urticaria) as a physical symptom. A May 2009 private medical record notes a diagnosis of urticaria/dermatographism with Zyrtec and Benadryl being prescribed for treatment. A July 2009 private medical treatment record notes that the Veteran was taking Benadryl. In November 2009, a Social Security Administration disability examination noted a history of chronic urticaria as a diagnostic impression. In February 2010, a VA examination of the Veteran was conducted. At this time, the Veteran reported that a rash began in "1991 or 1992 but not as bad at first it progressively became worse needing medication about 6 years ago." He reported that treatment with medication helped his itching, but had the side effect of making him sleepy. Physical examination revealed the presence of areas of red rash on the shoulders, chest, and arms. The diagnosis was chronic urticaria. To the extent that the Veteran has an actual diagnosis of urticaria, service connection pursuant the provisions of 38 C.F.R. § 3.317 is not warranted. As to cases in which a veteran applies for service connection under 38 C.F.R. § 3.317 but are found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions of 38 U.S.C.A. §§1110, 1131 is warranted. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). While pursuing this appeal the Veteran has asserted that he was not claiming service connection under 38 C.F.R. § 3.317. Rather, he asserted that he warranted service connection on a direct basis. He has further asserted exposure to a variety of hazards during service such as depleted uranium residue, multiple inoculations being administered, and exposure to the residuals of chemicals a environmental hazards. He claims that direct service connection based upon these exposures. A July 2010 VA treatment record reveals an assessment of chronic urticaria being treated with large doses of Benadryl, but also indicates an absence of any rashes or skin symptoms on objective examination. In February 2012, the most recent VA examination noted the Veteran's military history including serving in Kuwait and Iraq from October 1990 to April 1991. The Veteran reported exposure to petrol chemicals, recovered vehicles with depleted uranium, botulism vaccinations, pyridostigmine pills, chemical depots that were destroyed by US forces, and toluene in rocket fuel. He reported the he developed hives for the first time in the mid-1990's after discharge from the Army while a student at Western Kentucky University. The examiner noted that this statement was inconsistent with previous statements in the record regarding the onset of his rash symptoms. The Veteran reported working at a golf course where he described various reactions to chemicals, including toluene, which caused blurred vision and rhinorrhea. Physical examination revealed a 6 by 6-centimeter, ill-defined, red patch, with induration and excoriation on the right shoulder, and a 3-centimeter red patch on the right ankle. The diagnosis was "chronic urticaria of unknown etiology." The examining physician's medical opinion was that: The onset of the urticaria several years after discharge from the military is the strongest evidence against the urticaria being a service-related condition. There are multiple sources of documentation including his history today to support this assertion of onset after his discharge from the military. Urticaria is a type I immune reaction caused by recent exposure to an antigen. I am unaware of the onset of urticaria being triggered by an exposure in the distant past. It can be triggered by an infection but there is no data to support a chronic infection in this Veteran. My suggestion would be to have the radiologist that reads his next brain MRI to consider parasitic infections of the brain while interpreting the pineal cyst. This is a long shot. I would also recommend testing for chronic autoimmune urticaria which is caused by an IgG autoantibody directed against the IgE receptor on mast cells. The diagnosis of chronic autoimmune urticaria would not change my opinion that the urticaria is not a service-related condition. However, if the patient develops other autoimmune conditions he should be re- assessed for service related conditions due to his reported military exposures. As noted above, service connection for urticaria is not warranted as an undiagnosed illness under 38 C.F.R. § 3.317 as there a confirmed medical diagnosis. To the extent that the Veteran claims direct service connection is warranted, it is not. The Veteran has reported provided inconsistent reports of the date of onset of his urticaria symptoms. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (finding that in weighing the credibility, VA may consider inconsistent statements, internal inconsistency, and consistency with other evidence of record). Even assuming that the Veteran was exposed to all the environmental hazards during service that he reports, the medical opinion of record indicates that the current urticaria is unrelated to service or any such exposure as delayed-onset urticaria is not a known presentation of the disorder. While the 2012 VA examiner indicated that "the radiologist that reads his next brain MRI to consider parasitic infections of the brain," the examiner also noted that "there is no data to support a chronic infection in this Veteran" and that this was "a long shot." See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (finding VA statutory duty to assist is not a license for a "fishing expedition"). Simply put, the evidence of record reveals a current diagnosis of urticaria with no credible evidence linking the current disability to the Veteran's active duty military service. To the extent that the Veteran asserts that a current skin disorder is related to his active duty service, the Board finds that the matter of the determination of the origin of a skin disorder is more suited to the realm of medical expertise, rather than lay statements. The precise determination of one etiology when there are several potential origins is too complex for a layperson to proffer a competent opinion. The evidence of record does not demonstrate that the Veteran possesses the ability, knowledge, or experience to provide competent etiological opinions. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Consequently, the Veteran's assertions as to the etiology of his current skin disorder do not constitute competent evidence of etiology in this case. Accordingly, the preponderance of the evidence is against the claim of entitlement to service connection for urticaria; the benefit-of-the-doubt rule does not apply and service connection for this disorder is not warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for urticaria is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs