Citation Nr: 1341413 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 08-05 374 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a disability manifested by bilateral leg edema, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 2. Entitlement to service connection for a disability manifested by a skin rash, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty for training from August 1998 to November 1998, and on active duty from February 2003 to June 2004, and from May 2005 to January 2006. These matters initially came to the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision that, in pertinent part, denied service connection for a disability manifested by bilateral leg edema and for a disability manifested by a skin rash. The Veteran timely appealed. In May 2009, the Veteran testified during a hearing before the undersigned at the RO. In December 2009 and in March 2012, the Board remanded the matters for additional development. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). In November 2012, VA's Appeals Management Center (AMC) granted service connection for tinnitus, and assigned an initial 10 percent evaluation, effective June 8, 2006. Accordingly, the issue of entitlement to service connection for tinnitus has been resolved. Lastly, in addition to reviewing the Veteran's paper claims file, the Board has surveyed the contents of her Virtual VA file. FINDINGS OF FACT 1. The Veteran had active service in the Southwest Asia Theater of operations during the Persian Gulf War. 2. The Veteran has an undiagnosed illness, characterized by bilateral leg edema. 3. Chronic disability manifested by skin rashes was not exhibited in service and is not otherwise related to active duty; the Veteran does not have an undiagnosed illness, characterized by skin rashes. CONCLUSIONS OF LAW 1. An undiagnosed illness, characterized by bilateral leg edema, was incurred in active service. 38 U.S.C.A. §§ 1110, 1117 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.317 (2013). 2. Chronic disability manifested by skin rashes, to include as a disability due to undiagnosed illness, was not incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 1117 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.317 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). VA should notify the Veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; and (3) the evidence, if any, to be provided by the claimant. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. Part 3). Through June 2006 and November 2006 letters, the RO notified the Veteran of elements of service connection and the evidence needed to establish each element. These documents served to provide notice of the information and evidence needed to substantiate the claims. VA's letters notified the Veteran of what evidence she was responsible for obtaining, and what evidence VA would undertake to obtain. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA informed her that it would make reasonable efforts to help her get evidence necessary to support her claims, particularly, medical records, if she gave VA enough information about such records so that VA could request them from the person or agency that had them. In each letter, the RO specifically notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Defects as to the timeliness of the statutory and regulatory notice are rendered moot because each of the Veteran's claims on appeal has been fully developed and re-adjudicated by an agency of original jurisdiction after notice was provided. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). There is no indication that any additional action is needed to comply with the duty to assist the Veteran. The RO or AMC has obtained copies of the service treatment records and outpatient treatment records, and has arranged for VA examinations in connection with the claims on appeal, reports of which are of record. The opinions expressed therein are predicated on a review of the history and consideration of the Veteran's complaints and symptoms. In Bryant v. Shinseki, 23 Vet App 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that the Veterans Law Judge who chairs a Board hearing fulfill two duties to comply with 38 C.F.R. § 3.103(c)(2). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. Here, during the hearing, the undersigned identified the issues on appeal and 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 claims. The case was thereafter remanded for additional development, including examinations. Neither the Veteran nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2); and no prejudice has been identified in the conduct of the Board hearing. II. Analysis Service connection is awarded for disability that is the result of a disease or injury in active service. 38 U.S.C.A. § 1110. Service connection requires competent evidence showing: (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, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Specific to Persian Gulf War service, service connection may be granted for objective indications of a chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms, to include, but not limited to, signs or symptoms involving skin; muscle or joint pain; neurologic signs or symptoms; neuropsychologic signs or symptoms; sleep disturbances; gastrointestinal signs or symptoms; cardiovascular signs or symptoms; abnormal weight loss; or menstrual disorders. The chronic disability must have become manifest either 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 disabling not later than December 31, 2016; and must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317; see 76 Fed. Reg. 81,834 (Dec. 29, 2011) (interim final rule extending statutory period). Compensation shall not be paid under this section, however, if 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; or 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 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). A Persian Gulf Veteran is a Veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 U.S.C.A. § 1117(e); 38 C.F.R. § 3.317(d). In this case, the Veteran's DD Form 214 shows service in Southwest Asia from April 2003 to April 2004, and from June 2005 to June 2006; and receipt of the Iraq Campaign Medal, the Global War on Terrorism Expeditionary Medal, and the Global War on Terrorism Service Medal. These medals generally indicate service in the area and time period referenced under 38 C.F.R. § 3.317. The term "chronic disability" was changed to "qualifying chronic disability," and the definition of "qualifying chronic disability" was expanded to include (a) undiagnosed illness, (b) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. 38 U.S.C.A. § 1117 (West 2002); 38 C.F.R. § 3.317 (2013)). For the showing of chronic disease, there must be a combination of sufficient manifestations to identify the disease entity and sufficient observation at the time, as distinguished from isolated findings or a diagnosis including the word "chronic". 38 C.F.R. § 3.303 (2013). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (non-precedential). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a 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. Jandreau, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A. Bilateral Leg Edema The Veteran contends that service connection for a disability manifested by bilateral leg edema is warranted. In January 2006, the Veteran testified that she had sought treatment for bilateral leg edema during active service, and was told to try her best to stay off her feet. The Board notes that this is consistent with service treatment records, dated in June 2006, which show treatment for swollen legs and pain in bottom of feet, described as "mild pretibial edema bilaterally." A June 2006 statement of medical examination and duty status reveals that the Veteran had recurrent bilateral edema in legs, which progressed throughout the day and went down at night; and that the edema had occurred since July 2005. The Veteran also testified that she sought treatment post-service at a VA facility, and was again told to stay off her feet and put her feet up. She testified that her second deployment "took a toll" on her. The Veteran is competent to testify on factual matters of which she has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). The Board finds the Veteran's lay testimony and service treatment records to be credible for purposes of establishing the onset of bilateral leg edema in active service in the Southwest Asia Theater of operations. During a July 2006 VA examination, the Veteran reported intermittent swelling in both legs, beginning while deployed overseas in July 2005; and recurring subsequently when on her feet for longer than two hours. She reported that the swelling resolved with rest or elevation, and no pain was involved. She did not use medications for treatment. Examination revealed no current swelling and no tenderness. The examiner indicated that both legs were normal. VA treatment records reveal no findings of edema of extremities in December 2009. Following the Board's March 2012 remand, the Veteran underwent a VA examination in April 2012 for purposes of determining the nature and etiology of the Veteran's bilateral leg edema. At that time the Veteran reported that she had leg edema when the weather is hot and on her feet too long. The examiner noted that edema was mentioned in service treatment records in July 2005; and that no medication or compression stockings were offered, and no medical treatment was required. The examiner also noted that there was no showing of edema when last examined, and that present examination of the Veteran's legs revealed no edema. No diagnosis was provided. Following examination, the examiner opined that the Veteran's body habitus and tendency for some fluid accumulation at times may explain the issue. The examiner reasoned that the Veteran's obesity was a contributing factor for the edema when present, and that there was no heart condition to explain the problem. VA will not pay compensation under 38 C.F.R. § 3.317 for aggravation of disabilities resulting from pre-existing undiagnosed illnesses. See 60 Fed. Reg. 6,660 (February 3, 1995). In this case, however, there is no clear and unmistakable evidence that the Veteran's bilateral leg edema had pre-existed her active service in the Persian Gulf. Here, the Veteran exhibited current signs or symptoms involving the shins of both her legs, which is an objective sign of undiagnosed illness under 38 C.F.R. § 3.317(b). Neither examiner attributed the Veteran's bilateral leg edema to any cardiac disease or to other disability. Under these circumstances, and affording the Veteran the benefit of the doubt, the Board finds that the Veteran's disability manifested by bilateral leg edema is intermittent and had manifested during active service in the Southwest Asia Theater of operations during the Persian Gulf War. The evidence does not show that the Veteran's bilateral leg edema was attributable to events after active service, or to willful misconduct. Hence, the presumption of service connection applies, and the criteria for service connection are met. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. B. Skin Rash The Veteran contends that service connection for a disability manifested by a skin rash is warranted. In May 2009, the Veteran testified that she had skin rashes between her legs and in her chest area, particularly in hot weather; and that VA gave her some cream to apply to those particular areas. She also testified that she was not treated for a skin rash in active service, and that she had used over-the-counter medications. The Veteran also testified that she first noticed the skin rash when the weather really heated up in Iraq. As noted above, she is competent to testify on factual matters of which she has first-hand knowledge. Washington, 19 Vet. App. at 368. Service treatment records do not reflect any findings or complaints of any skin disease or skin rash. The Board notes that, on a "Post Deployment Health Assessment" completed by the Veteran in June 2006, she checked "no" in response to whether she now had skin diseases or rashes, or had developed skin diseases or rashes anytime during the deployment. The next month, during a July 2006 VA examination, the Veteran reported having had a groin rash while overseas during hot weather last year, which resolved after use of an over-the-counter anti-fungal cream. At present, there was no skin rash. Following the Board's March 2012 remand, the Veteran underwent a VA examination in April 2012 for purposes of determining the nature and etiology of the Veteran's skin rash. At that time the Veteran described the rash as developing in folds in the groin region, especially on hot days; and that the skin rash was off and on, and responded to the use of anti-fungal powders and creams. She also reported that a similar rash had developed in folds beneath both breasts. The examiner diagnosed intertrigo, characterized as an infectious skin condition, and treated with topical medications; the total body area affected was less than 5 percent. Here, the Board finds that the Veteran's skin rash had not exhibited symptomatology of a compensable nature at any time post-service to warrant a finding of undiagnosed illness. See 38 C.F.R. § 4.118, Diagnostic Codes 7806, 7820 (2013). Moreover, the April 2012 examiner attributed the Veteran's skin rash to a known clinical diagnosis. Thus, a disability manifested by a skin rash cannot be considered an undiagnosed illness or a qualifying chronic disability for entitlement to service connection based on the Veteran's service in the Persian Gulf. As for service connection on a direct basis, the report of the April 2012 examination weighs against a finding that a current disability manifested by a skin rash is related to disease or injury in active service. In fact, the April 2012 examiner opined that the Veteran's current skin rash was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness. The examiner reasoned that the precipitating factor for the Veteran's recurrent tinea infections was perspiration and moisture collection in the intertriginous regions of her body from excessive heat or over activity. The examiner again noted that the Veteran was obese, and concluded that the problem was not felt to be a reflection of her active service other than as a reflection of being exposed to heat while on active duty. The Board finds the April 2012 opinion is factually accurate, fully articulated, and contains sound reasoning. Therefore, the opinion is afforded significant probative value. To the extent the Veteran contends she currently has a recurring skin rash, her statements are competent and credible. However, she is not shown to have the medical expertise to diagnose or determine the etiology of skin disease. Again, this is not something that would be readily apparent to a lay person. Physicians must rely on examination, medical history, and special diagnostic testing to render a diagnosis and determine etiology. While the Veteran reported in connection with the VA examination in 2006 that she experienced skin rashes while deployed during the prior year, on the post-deployment health assessment in 2006, she reported that she did not experience skin diseases or rashes while deployed, thus her statements in that regard are not credible. Moreover, the VA examiner opined that her current skin rash was less likely as incurred in or caused by an in-service injury, event or illness. The examiner reviewed the history, conducted an examination and provided an opinion which is supported by a rationale. Accordingly, the medical opinion is highly probative evidence against finding a nexus between any presently recurring episodes of skin rash and service. In this case, the competent evidence is against finding that any recurring skin rash is linked to service. A preponderance of the evidence is therefore against a finding that the Veteran's recurring skin rash either had its onset during service or is related to disease or injury in active service. The reasonable doubt doctrine is not for application. Thus, service connection for a disability manifested by a skin rash is not warranted. See 38 U.S.C.A. § 5107(b) (West 2002). For the reasons and bases set forth above, the Board concludes that the preponderance of the evidence is against granting service connection for a disability manifested by a skin rash either on a direct basis or as due to an undiagnosed illness. On this matter, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for an undiagnosed illness exhibited by bilateral leg edema is granted. Service connection for a disability manifested by a skin rash is denied. ___________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs