Citation Nr: 1339037 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 09-39 040 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for hair loss, to include as due to undiagnosed illness. 2. Entitlement to service connection for swollen feet and legs, to include as due to undiagnosed illness. ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1985 to December 1985 and from September 1986 to December 1991. She was awarded the Southwest Asia Service Medal with documented service with the United States Army in Southwest Asia from October 17, 1990 to April 15, 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by which the RO, in pertinent part, declined to reopen the claim herein, which had been finally decided in an earlier rating decision. In connection with this appeal, the Veteran requested a personal hearing before a Veterans Law Judge at the RO. She withdrew her hearing request in May 2012. See 38 C.F.R. § 20.704(e) (2013). Accordingly, the Board will proceed with consideration of the Veteran's claims based on the evidence of record, as she has requested. In September 2012, the Board determined that sufficient new and material evidence had been received to reopen these claims. The issues on appeal were also remanded by the Board in September 2012 and in June 2013 to obtain a VA examination to assist in determining the nature and etiology of the Veteran's disorders. This was accomplished, and the claims were readjudicated in an August 2013 supplemental statement of the case. For this reason, the Board concludes that that the Board's remand orders have been substantially complied with, and it may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran served in the Southwest Asia Theater during the Persian Gulf War. 2. The Veteran's complaints of hair loss and swelling of the lower extremities have been diagnosed as alopecia and dependent edema. 3. The Veteran's currently diagnosed of alopecia and dependent edema are not etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for hair loss, to include as due to an undiagnosed illness, are not met. 38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A, 5107, 7104 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2013). 2. The criteria for service connection for swollen feet and legs, to include as due to an undiagnosed illness, are not met. 38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A, 5107, 7104 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects the Veteran was provided VCAA notice in a letter mailed in December 2007. In this letter, VA informed the Veteran that in order to substantiate a claim for service connection, the evidence needed to show she had a current disability, a disease or injury in service, and evidence of a nexus between the post-service disability and the disease or injury in service, which was usually shown by medical records and medical opinions. The VCAA notice letter also included a discussion on establishing service connection based on Gulf War undiagnosed illnesses. As to informing the Veteran of which information and evidence she was to provide to VA and which information and evidence VA would attempt to obtain on her behalf, VA informed the Veteran it had to obtain any records held by any federal agency. This letter also informed the Veteran that on her behalf VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. Finally, the letter also informed the Veteran of disability rating and effective date criteria. The Veteran has had ample opportunity to respond and supplement the record. VA has obtained service treatment records and post-service VA and private treatment records, assisted the Veteran in obtaining evidence, and afforded the Veteran VA examinations in July 2010 and July 2013. To that end, 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). The Board finds that the VA opinions and findings obtained in this case are adequate. The Board notes that although the July 2010 VA examination report diagnosed the Veteran with alopecia, it did not address the etiology of the Veteran's disorders. However, the July 2013 VA nexus opinions considered the pertinent evidence of record, to include the statements of the Veteran, and provided a rationale for the opinions stated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). Additionally, the Veteran has not identified any other evidence that could be obtained to substantiate the claims. In sum, the Board is satisfied that any procedural errors in the RO's development and consideration of the claim were insignificant and non prejudicial to the Veteran. Accordingly, the Board will address the merits of the claims. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The conditions of hair loss and swelling of the lower extremities, diagnosed respectively as alopecia and dependent edema, are not "chronic disease[s]" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Service connection may also be established on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of qualifying chronic disability, including 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, 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 undiagnosed illness, 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. Id. A "qualifying chronic disability" for purposes of 38 U.S.C.A. § 1117 is a chronic disability resulting from (A) an undiagnosed illness, (B) 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 (C), 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)(2)(i)(B). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317(a)(2), (3). Signs or symptoms that may be manifestations of undiagnosed 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 § 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). The Board notes that, effective July 13, 2010, VA has amended its adjudication regulations governing presumptions for certain Persian Gulf War Veterans. Such revisions amend § 3.317(a)(2)(i)(B) to clarify that chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome are examples of medically unexplained chronic multisymptom illnesses and are not an exclusive list of such illnesses. Additionally, the amendment removes § 3.317(a)(2)(i)(B)(4) which reserves to the Secretary the authority to determine whether additional illnesses are "medically unexplained chronic multisymptom illnesses" as defined in paragraph (a)(2)(ii) so that VA adjudicators will have the authority to determine on a case-by-case basis whether additional diseases meet the criteria of paragraph (a)(2)(ii). These amendments are applicable to claims pending before VA on October 7, 2010, as well as claims filed with or remanded to VA after that date. See 75 Fed. Reg. 61,997 (Oct. 7, 2010). Compensation under 38 U.S.C.A. § 1117 shall not be paid if: (1) there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; (2) if 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; or (3) if there is affirmative evidence that the illness is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). 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). A Persian Gulf Veteran is one who served in Southwest Asia (including Iraq) at any time since August 1990. 38 C.F.R. §§ 3.2, 3.317. Based upon a review of service records, the Board finds that the Veteran is a Persian Gulf Veteran. The DD Form 214 reflects that the Veteran had service in the Southwest Asia Theater of operations from October 1990 to April 1991. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on a veteran's behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Analysis of Service Connection Claims The Veteran contends that her hair loss and swelling of the lower extremities is related to service, to include as due to an undiagnosed illness. As such, she maintains that service connection is warranted for both disorders. Initially, the Board finds that the Veteran is shown to have qualifying service as a Persian Gulf War Veteran. That notwithstanding, the Board finds that the Veteran's hair loss and swelling of the lower extremities are not due to an undiagnosed illness. In this regard, both the July 2010 and July 2013 VA examiners diagnosed the Veteran with alopecia (hair loss or baldness). Further, the July 2010 VA examination report noted the Veteran's complaints of cramping and pain in her feet, allegedly beginning during service. On physical examination, the July 2010 VA examiner found no abnormality of the feet and diagnosed bilateral foot cramping and muscle spasms. The July 2013 VA examiner interviewed the Veteran, reviewed the evidence of record, conducted physical examination, and diagnosed dependent edema (swelling in lower or dependent parts of the body). The Board finds that alopecia and dependent edema are clinical diagnoses. Thus, these disabilities are not shown to be due to undiagnosed illness. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a). Consequently, service connection for these disorders as a result of an undiagnosed illness must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board further finds that the Veteran's currently diagnosed alopecia and dependent edema are not etiologically related to service. In this regard, service treatment records are absent of any complaints, diagnoses, or treatment for hair loss or lower extremity swelling. In an August 1991 report of medical examination, conducted only four months prior to separation from service, the Veteran's head and lower extremities were normal on clinical evaluation and the Veteran was noted as being in "good health." As noted above, the Veteran was afforded a VA examination in July 2013 to specifically address the etiology of her currently diagnosed alopecia and dependent edema. The July 2013 VA examiner noted that an in-person examination was conducted and the evidence of record was reviewed. As to the diagnosed alopecia, the VA examiner stated that service treatment records reviewed in VBMS did not document any treatment for any hair loss complaints such as excessive shedding, breakage, or alopecia during service duty or in the proximate, post-service discharge period. The examiner further noted that, upon physical examination, the Veteran had hair breakage and brittle hair consistent with traumatic alopecia. According to the VA examiner, there were many possible causes for traumatic alopecia including: excessive chemical use, relaxers, dyes, or the combination of both relaxers and dyes; excessive heat, curling irons, flat irons, hot rollers, hot combs, blow dryers, hooded dryers; and frictional forces, rubber bands, excessive brushing or combing. It was noted that the Veteran was wearing a hair weave which, according to the examiner, could cause a type of traumatic alopecia called traction alopecia due to pulling forces on the hair resulting in breakage and hair loss. Based on these reasons, the VA examiner opined that currently diagnosed traumatic alopecia was less likely than not incurred in or caused by service. As for the diagnosed dependent edema, the July 2013 VA examiner noted that a review of service treatment records was negative for any chronic, dependant lower extremity edema complaints or treatment during service. The examiner did note that in 1991 she complained of both feet and ankles being painful and swollen and was diagnosed with mild Achilles tendonitis; however, the VA examiner noted that her current complaints, history, and examination were not consistent with Achilles tendonitis. Instead, current complaints were found to be consistent with lower extremity dependent edema. The Veteran did report of this problem at the Women's Clinic in July 2012, where the Veteran stated that she had foot and ankle swelling which was noted as happening after long hours of standing at work. The July 2012 treatment note stated that the lower extremity swelling was "likely due to heat and longterm standing." In summary, and upon review of the record, to include post-service treatment notes, the July 2013 VA examiner opined that the Veteran's intermittent, lower extremity dependent edema was less likely than not incurred in or related to service. The VA examiner reasoned that the condition was positional in nature and due to the Veteran's current environmental work situation. The examiner further explained that dependent edema of the lowermost parts of the body relative to the heart is affected by gravity and position, so that the lower limbs are affected if the individual is standing. Upon review of all the evidence of record, the Board finds the July 2013 VA medical opinion to be highly probative as to a lack of nexus to service for the alopecia and dependent edema disorders. The examiner reviewed the claims file, discussed the evidence in detail, and provided an opinion based on a clear rationale supported by the evidence of record. See Prejean, 13 Vet. App. at 448-9. In making this determination, the Board has also considered the Veteran's statements purporting to relate hair loss and swelling of the lower extremities, diagnosed as alopecia and dependent edema, to service, to include her service in the Persian Gulf War; however, the Veteran is not competent to render a medical opinion regarding the cause of the complex disorders of alopecia and dependent edema. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011) (recognizing ACL injury is a medically complex disorder that requires a medical opinion to diagnose and to relate to service or differentiate from in-service symptoms and diagnosis). In this regard, alopecia and dependent edema are medically complex disorders because of their multiple etiologies and manifest symptomatology that overlap with other disorders. The Veteran has not shown, and the record does not otherwise suggest, that she has the knowledge, training, or experience to render an opinion as to the etiology of these disorders. For these reasons, the Board finds that the preponderance of the evidence is against the Veteran's claims for service connection for hair loss (alopecia) and swollen feet and legs (dependent edema), both to include as due to an undiagnosed illness, and the claims must be denied. Because the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for hair loss, to include as due to undiagnosed illness, is denied. Service connection for swollen feet and legs, to include as due to undiagnosed illness, is denied. ____________________________________________ T. D. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs