Citation Nr: 1511446 Decision Date: 03/18/15 Archive Date: 03/27/15 DOCKET NO. 13-06 143A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for lymphadenopathy (claimed as subcutaneous growths of the neck, underarm and legs), also claimed as the result of an undiagnosed illness and exposure to depleted uranium. 2. Entitlement to service connection for fibromyalgia, also claimed as the result of an undiagnosed illness and exposure to depleted uranium. 3. Entitlement to service connection for a skin disorder (claimed as allergies and/or sensitivity to chemicals/pesticides), also claimed as the result of an undiagnosed illness. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Yvette Hawkins, Counsel INTRODUCTION The Veteran served on active duty from April 1987 to August 1991, with subsequent reserve duty service. He had service in the Southwest Asia theater of operations during the Persian Gulf War from December 1990 to May 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In a July 2011 statement, the Veteran also asserted that he has lymphadenopathy and fibromyalgia as a result of exposure to depleted uranium. Accordingly, the issues on the cover page have been revised to include this theory of entitlement. See Roebuck v. Nicholson, 20 Vet. App. 307, 313 (2006) ("although there may be multiple theories or means of establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit for the same disability, they constitute the same claim."). This appeal was partly processed electronically using the Virtual VA and VBMS paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. The issues of entitlement to service connection for lymphadenopathy and fibromyalgia (also claimed as the result of an undiagnosed illness and exposure to depleted uranium), are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT A skin disorder did not manifest during the Veteran's active military service, and the preponderance of the evidence is against finding a relationship or correlation between such a condition and military service. CONCLUSION OF LAW The criteria for service connection for a skin disorder (claimed as allergies or sensitivity to chemicals/pesticides), also claimed as the result of an undiagnosed illness, are not met. 38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.317(a), (b) (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2014). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2014); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Element (4), the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim, was eliminated by the Secretary of VA (the "Secretary") in 2008. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini, effective May 30, 2008). The Veterans Claims Assistance Act of 2000 (VCAA) notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a 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 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Of particular importance, in Dingess/Hartman, the Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection is awarded. VA satisfied the notification requirements of the VCAA by means of a letter dated in April 2010. Additionally, the claims file contains the Veteran's statements in support of his claim. VA's duty to assist has also been satisfied. The claims file contains the Veteran's service and post-service treatment records, as well as a VA examination report dated in September 2010. Review of the VA examination shows that the examiner reviewed the complete evidence of record, obtained a history of symptomatology and treatment from the Veteran, performed a comprehensive examination, and found no evidence of a skin disorder. Accordingly, the Board concludes that the examination report is adequate upon which to base a decision in this case. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) the 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"- the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 3.303(b), where the veteran asserts entitlement to a chronic condition, but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013), aff'g Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). (emphasis added). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by a showing of in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). The Veteran claims that he has a skin disorder, claimed as allergies and/or sensitivity to chemicals/pesticides, as a result of his military service in the Persian Gulf War. A report from the service department shows that he served in Southwest Asia from December 1990 to May 1991; his DD 214 shows that he was awarded the Southwest Asia Service Medal with 3 bronze stars, as well as the Kuwait Liberation Medal. 38 C.F.R. § 3.317. Compensation may be paid to any Persian Gulf War veteran "suffering from a chronic disability resulting from an undiagnosed illness (or combination of undiagnosed illnesses)." 38 U.S.C.A. § 1117. These may include, but are not limited to, fatigue, headache and skin conditions. 38 C.F.R. § 3.317(b). Such chronic disability must have manifested 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 no later than December 31, 2016, and must not be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. Objective indications of a 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. The definition of "qualifying chronic disability" was expanded to include (a) an 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. See 38 C.F.R. § 3.317(a)(2) (2014). Accordingly, under these regulations service connection may be granted on a presumptive basis if there is evidence (1) that the claimant is a Persian Gulf veteran; (2) who exhibits objective indications of chronic disability resulting from an undiagnosed illness, a medically unexplained chronic multi-symptom illness (such as CFS, fibromyalgia, or IBS) that is defined by a cluster of signs or symptoms, or resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) which became 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 not later than December 31, 2016; and (4) that such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. §§ 1117, 1118; 38 C.F.R. § 3.317; 76 Fed. Reg. 81,834, 81,835 (interim final rule December 29, 2011). In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.117, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. See Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). 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 an 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). If signs or symptoms have been attributed to a known clinical diagnosis, service connection may not be established under the specific provisions applicable to Persian Gulf War veterans. See VAOPGCPREC 8-98 at paragraphs 4-5 (Aug. 3, 1998). Of course, service connection for a diagnosed illness still may be established if otherwise warranted under VA law. See generally, Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). Diseases of allergic etiology may not be disposed of routinely for compensation purposes as constitutional or developmental abnormalities. Service connection must be determined on the evidence as to existence prior to enlistment and, if so existent, a comparative study must be made of its severity at enlistment and subsequently. Increase in the degree of disability during service may not be disposed of routinely as natural progress or as due to the inherent nature of the disease. Seasonal and other acute allergic manifestations subsiding on the absence or removal of the allergen are generally to be regarded as acute diseases, healing without residuals. The determination as to service incurrence or aggravation must be on the whole evidentiary showing. 38 C.F.R. § 3.380 (2014). The Veteran's active duty service treatment records reveal no complaints or clinical findings of any symptoms associated with a skin disorder or medically-unexplained chronic multi-symptom illness involving the skin. There are also no treatment records pertaining to complaints of, or a diagnosis of allergies. His March 1987 enlistment examination revealed normal findings for the skin other than small, healing burn scars and small hand warts. He denied then having, or previously having had any skin diseases, and specifically denied having any allergies. During his August 1991 National Guard enlistment examination, performed shortly after his active duty service, normal findings were reported for the skin and lymphatics. On the accompanying medical history form, he specifically denied then having or having previously had allergies or other medical problems of any kind. A periodic examination in February 1996 also revealed no evidence of a skin disorder or allergies. Post-service treatment records contain no evidence that the Veteran sought treatment for, or was diagnosed with a skin disorder or allergy involving the skin prior to submitting his claim for VA compensation benefits in April 2010. During a September 2010 VA Gulf War examination, the Veteran reported that he had very sensitive skin and developed a rash after exposure to sprays/pest control substances. Although he reported lymph node tenderness, he did not report any other symptoms pertaining to the skin. There was no diagnosis of a skin disorder other than intermittent lymphadenopathy. Palm Harbor VA treatment records show that, in October 2010, during an outpatient visit, it was noted that the Veteran had an allergy to pesticides and the antibiotic, clindamycin. The diagnosis was noted again during a March 2011 visit, when the Veteran was seen for complaints of sore muscles, joints and stiffness. However, he specifically denied having a rash, and the physical examination for the skin was negative. While treatment notes dated in September 2011 indicated "allergy/adverse drug reaction (ADR) - pesticides, clindamycin" apparently as reported by the Veteran, September 2011 outpatient visit screening evaluation notes from the VA Bay Pines Center revealed normal findings on skin evaluation. A November 2013 anticoagulation telephone clinic note indicated that the Veteran reported allergy to pesticides, clindamycin and methotrexate. However, there are no prior or subsequent treatment reports showing that the Veteran has ever been treated for skin sensitivity or a pesticide allergy during the course of the appeal. While outpatient treatment records show that he is using albuterol for breathing, he has reported that this is for his chronic obstructive pulmonary disease (COPD). The Veteran's claimed skin disorder, which has been diagnosed as an allergy to pesticides, and without any specific reference to the skin, has been attributed to a known, clinical diagnosis, and thus, is ineligible for service connection under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 based on his Persian Gulf War service. Accordingly, what remains for consideration is whether his claimed skin disorder can otherwise be related to an incident of active duty service. Despite the VA treatment notes showing that the Veteran has a pesticide allergy, there are no VA or private treatment reports of record indicating that his pesticide allergy stems from, or is related to any incident, event or injury of active duty service. As discussed above, there is no probative evidence that he was treated for, or diagnosed with a skin disorder or symptoms of an allergy to chemical or pesticides during active duty service. The fact that he denied having any such disorders during his August 1991 National Guard examination, specifically undertaken to ascertain his physical fitness, as well as the examination findings themselves, are both competent and highly probative evidence against his claim. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). The preponderance of the competent and probative evidence is against the Veteran's claim of entitlement to service connection for a skin disorder (claimed as allergies and/or sensitivity to chemicals/pesticides), also claimed as the result of an undiagnosed illness, both on a direct basis, as well as the result of an undiagnosed illness. In addition to the medical evidence, the Board has also considered the Veteran's assertions concerning his claimed disorder. In a letter received in August 2011, he wrote that he experienced severe rashes in conjunction with home pesticide treatments, and instead used organic pest treatments with episodes of reoccurrence by interaction with others. Although lay persons are competent to report what they experience with their own senses (see Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007)), they are not competent to opine on medical matters. Further, the Veteran's opinions are insufficient to provide the requisite nexus between an in-service injury or event and any current disability because, as a lay person, he is not competent to establish a medical etiology merely by his own assertions; such matters require medical expertise. See 38 C.F.R. § 3.159(a)(1); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997). As noted above, seasonal and other acute allergic manifestations subsiding on the absence or removal of the allergen are generally to be regarded as acute diseases, healing without residuals. Here, there has simply been no competent evidence presented to suggest that the Veteran's claimed skin sensitivity/pesticide allergy is anything more than an acute disorder, manifesting only in the presence of the claimed allergen. The Veteran's own statement about "episodes of reoccurrence" supports this finding. Accordingly, the Board concludes that the most probative evidence of record weighs against the claim for service connection for a skin disorder (claimed as allergies and/or sensitivity to chemicals/pesticides), also claimed as the result of an undiagnosed illness. The "benefit-of-the-doubt" rule enunciated in 38 U.S.C.A. § 5107(b) does not apply in this case, as there is not an approximate balance of probative evidence. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for a skin disorder (claimed as allergies and/or sensitivity to chemicals/pesticides), also claimed as the result of an undiagnosed illness, is denied. REMAND The Veteran was afforded a Gulf War examination in September 2010 for his claims of entitlement to service connection for lymphadenopathy (claimed as subcutaneous growths of the neck, underarm and legs) and fibromyalgia, both also claimed as the result of an undiagnosed illness and exposure to depleted uranium. With regard to lymphadenopathy, the clinician diagnosed him with bilateral lymphadenopathy, mostly in the left neck area, but opined that it was less likely as not caused by his Gulf War service. Her rationale, that she was "unable to make a direct connection," and that chronic sinusitis may be an etiology for the lymph node enlargement, are inadequate reasons and bases for her conclusion. Accordingly, remand is required to afford the Veteran a new examination. Regarding the fibromyalgia examination, the examiner opined that the Veteran did not have a diagnosis of fibromyalgia, adding that, out of the 18 tender points for a diagnosis, the Veteran only had tenderness in the gluteal area. However, VA treatment reports, dated after the September 2010 examination, show that the Veteran was found to have 12 out of 18 points positive for fibromyalgia, with an uncertain diagnosis until further evaluation by rheumatology. They further show that he has been diagnosed with chronic pain syndrome. Accordingly, remand is required to obtain updated treatment records and afford the Veteran a new examination, which takes these reports into account. Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain all available VA treatment records pertaining to the Veteran's lymphadenopathy and fibromyalgia (INCLUDING ANY RHEUMATOLOGY TREATMENT REPORTS OR TREATMENT REPORTS FOR CHRONIC PAIN SYNDROME) since December 2013 and associate with the e-file. If any identified records are not obtainable (or none exist), the Veteran should be notified and the record clearly documented. 2. Schedule the Veteran for a GULF WAR EXAMINATION with an appropriate examiner to determine the etiology of his claimed lymphadenopathy and fibromyalgia. ENSURE THAT ALL AVAILABLE TREATMENT RECORDS HAVE BEEN SCANNED INTO VBMS BEFORE THE VETERAN'S EVALUATION. Any and all tests deemed necessary should be performed. The examiner should opine as to the following: (a) Whether the Veteran has a diagnosis of lymphadenopathy (claimed as subcutaneous growths of the neck, underarm and legs) that had an onset during service or is related to any incident of service, to include as a result of an undiagnosed illness and/or exposure to depleted uranium while serving in the Southwest Asia theater of operations during the Persian Gulf War. All opinions must be accompanied by a complete explanation. (b) Whether the Veteran has a diagnosis of FIBROMYALGIA OR CHRONIC PAIN SYNDROME that had an onset during service or is related to any incident of service, to include as a result of an undiagnosed illness and/or exposure to depleted uranium while serving in the Southwest Asia theater of operations during the Persian Gulf War. All opinions must be accompanied by a complete explanation. The examiner is asked to consider the following in formulating his/her opinions: * Please REVIEW AND COMMENT ON the September 2010 VA Gulf War examination report, in which the examiner speculated that chronic sinusitis MAY be an etiology for enlarged lymph nodes. * Please review the VA treatment reports, which show that the Veteran has been diagnosed with chronic pain syndrome and POSSIBLE fibromyalgia (outpatient treatment August 22, 2011). If, based on your examination and review of the evidence of record, to include any diagnostic test results, you conclude that the Veteran DOES NOT have a diagnosis of fibromyalgia, please explain the difference between fibromyalgia and chronic pain syndrome (diagnosed in the VA outpatient treatment reports of October 2013) and whether chronic pain syndrome may be the result of active duty service. If the clinician is unable to offer an opinion without resorting to speculation, it should be so stated. In that case, the examiner must specifically support that conclusion with a detailed medical explanation that takes into consideration all of the pertinent evidence of record (including the Veteran's self-reported history), and addresses such matters as whether (a) there is inadequate factual information upon which to base an opinion (e.g., the lack of service treatment records); and (b) the question falls outside of the limits of current medical knowledge or scientific development; c) the condition manifested in an unusual way, such that its cause or origin is unknowable; or d) there are other risk factors for developing the condition. 3. Thereafter, the AOJ should review the examination report to insure that the required development has been accomplished. The issues on appeal should then be readjudicated. If any issue on appeal is not granted, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded the opportunity to respond thereto. The matter should then be returned to the Board, if in order, for further appellate process. The appellant has the right to submit additional evidence and argument on the matter or 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 2014). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs