Citation Nr: 1529521 Decision Date: 07/09/15 Archive Date: 07/16/15 DOCKET NO. 10-35 328 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 2. Entitlement to service connection for hair loss of the head and face, to include a skin disorder. 2. Entitlement to service connection for headaches. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from February 1987 to January 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which, in pertinent part, denied the Veteran's claims for service connection for migraine headaches and hair loss of the face and head. In May 2011, the Veteran testified at a Decision Review Officer (DRO) hearing. A hearing transcript has been associated with the record. In April 2014, the Board denied the Veteran's claim for service connection for hair loss of the face and head. In addition, his claim for service connection for headaches was remanded to the Agency of Original Jurisdiction (AOJ) for additional development. The Veteran subsequently appealed the April 2014 Board decision to the United States Court of Appeals for Veterans Claims (Court). In December 2014, the Court issued a Joint Motion for Partial Remand (JMPR) filed by representatives for the parties, vacating the Board's decision as to the claim for service connection for hair loss of the face and head, and remanding this claim to the Board for further proceedings consistent with the JMPR. In January 2015, the Board remanded this matter for further development, to include additional VA examinations. The requested development was completed. However, as will be discussed below, additional development is required with regard to the issue of service connection for headaches. The issue of entitlement to service connection for headaches is addressed in the REMAND portion of the decision below and is remanded to the RO via the Appeals Management Center in Washington, DC. FINDING OF FACT 1. The Veteran does not have a chronic undiagnosed 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. 2. Any current hair loss/skin disorder, including alopecia and vitiligo, is not of service origin. CONCLUSION OF LAW The criteria for service connection for hair loss of the head and face, to include a skin disorder have not been met. 38 U.S.C.A. §§ 1110, 1117, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Proper VCAA notice 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) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The Court has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As it relates to the issues of service connection for hair loss, to include a skin disorder, the RO, in a July 2009 letter, provided the Veteran with notice that informed him of the evidence needed to substantiate his claim. The letter also told him what evidence he was responsible for obtaining and what evidence VA would undertake to obtain. The letter further told him to submit relevant evidence in his possession. The letter also provided the Veteran with notice as to the disability rating and effective date elements of the claim. VA has a duty to assist a veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All available pertinent treatment records, service and post-service, have been obtained and associated with the claims folder. No other relevant records have been identified. The Veteran was afforded a VA examination in March 2015 which includes an opinion as to the etiology of any current hair loss/skin disorder and its relationship to his period of service, to include service in the Gulf War. The Board finds that the VA examination report and opinion of record is adequate for rating purposes because it was performed and prepared by a medical professional, and was based on thorough examination of the Veteran, and reported findings pertinent to decide the claim for service connection. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); see Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, the Board finds that no further examinations are necessary regarding the above issues. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and arguments presented by his representative and through testimony at his May 2011 hearing. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran in substantiating this claim. Service Connection-General Criteria 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The identified hair loss/skin disorders, alopecia and vitiligo, are not "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply. Walker, 708 F.3d 1331 (Fed. Cir. 2013). As it relates to a qualifying chronic disability, service connection may be established on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of chronic disability 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 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) (VA has issued an interim final rule extending this date to December 31, 2016). 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 VA 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). 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 VA 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. 1,997 (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). The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(d)(2). The Persian Gulf War period runs from August 2, 1990 to a date not later than December 31, 2016. 38 U.S.C.A. § 101(33). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. As discussed below, the weight of the evidence demonstrates that the Veteran has been diagnosed with alopecia and vitiligo. Because these conditions have specific diagnosis, neither is an undiagnosed illness and service connection under 38 C.F.R. § 3.317 is not warranted. The Veteran maintains that his current hair loss/skin disorders had their onset in service. A review of the Veteran's service treatment records reveals that in June 1991, the Veteran was seen with complaints of a rash on his elbows which was identified as small patches of lichenified skin. At the time of an August 1992 visit, the Veteran complained of a heat rash on his inner elbow, back, and knees when he sweat. At the time of a March 1993 visit, the Veteran reported having a heat rash on the left side of his neck. In December 1993, the Veteran was given a refill of hydrocortazine for a skin rash. It was diagnosed as a heat rash. At the time of a June 1994 physical examination, normal findings were reported for the head, face, neck, scalp and skin. Normal findings were again reported for the head, face, neck, scalp, and skin at the time of the Veteran's December 1994 service separation examination. On his December 1994 service separation report of medical history, the Veteran checked the "no" box when asked if he had or had ever had skin diseases. On his initial application for compensation, received in February 1995, the Veteran did not report having any hair loss/skin problems. Private treatment records shows that in July 1998, the Veteran was diagnosed with alopecia areata in the left parietal area of the scalp. The Veteran reported that this had been present for several weeks and had gradually grown and become larger. It was not preceded by any irritation or inflammation in the net area that the Veteran was aware of. A diagnosis of alopecia areata was rendered. Alopecia was again noted in a December 1998 treatment record. In April 1999, no skin problems were noted. There were also no findings of skin problems in April 1999 and July 2004. In March 2010, the Veteran was seen with complaints of a spreading dermatitis. He indicated that over the last several weeks he had noticed white spots on his back which were now spreading down his arms and all the way down on his legs. He stated that this was not evident prior to a few weeks earlier. A diagnosis of hypopigmented dermatitis, most likely tinea versicolor, was rendered. Subsequent treatment records reassessed the Veteran's skin disorder as idiopathic vitiligo in April 2010 and advanced vitiligo and severe vitiligo in March and April 2011 treatment records. In an August 2009 letter, the Veteran's wife indicated that she had been married to her husband for 21 years and that since Desert Storm, the Veteran had experienced spotted hair loss, which also included facial hair loss for about 3 years and rashes on the back of his neck and in the creases of his forearms (healed and reappeared). She noted that he had been to his physician and was given creams hoping it would subside the issue with the spotted hair lost and the rashes. She stated that they had also tried home remedies like cleaning the affected areas with Listerine. She indicated that the Veteran had kept his head clean shaven as well as his facial hair to avoid questions from family and friends as to why he had spotted hair loss. She noted that he would scratch and rub the rashes to the point it would become so exposed that it would prevent him from family activities such as going out to eat at a restaurant, swimming, or even a simple day at the park. At his May 2011 hearing, the Veteran indicated that he first noticed his hair loss right after he was discharged from the military. He reported that he cut his hair and then realized it was not growing back in certain spots. He stated that it was his belief that his skin rashes in service were the cause of his hair loss. He indicated that it was his belief that his skin problems may have been related to his service in the Gulf War. In March 2015, the Veteran was afforded a VA examination. At the time of the examination, the Veteran reported having developed bald spots in the scalp which began in the occipital area and spread to involve most of the scalp in a patchy distribution, followed by involvement of his face and body. He indicated that at around the same time he developed depigmentation of the skin of his head, face and body. The examiner noted that he had been diagnosed with vitiligo in approximately 2010 and had seen a dermatologist. The Veteran indicated that in retrospect he had a rash involving the neck, arms and wrists which began in service and had persisted. He described it as raised, red, itchy bumps. He did not recall a diagnosis being made for the rash, but at one point he was given an injection which he believed may have been a steroid medication. The Veteran indicated that more recently, he had a re-appearance of pigmentation in a patchy distribution over the hairline and forearms, less so in the lower extremities. The Veteran stated that he typically shaved his scalp because of the history of alopecia, although recently there had been regrowth of the scalp hair. The Veteran reported that he had received light treatments for the skin and hair problems and had used Protopic, but without much improvement. He stated that he had not been diagnosed with a connective tissue disease or been treated with oral steroids or immunosuppressants. The examiner indicated that a review of the service treatment records revealed that the Veteran was treated for a skin rash with hydrocortisone cream for a rash on the neck described as small raised lesion diagnosed as a heat rash. The rash was evaluated and treated in March 1993 and December 1993. The examiner also noted that a review of recent medical records from his private dermatologist revealed treatment with desonate gel, Protopic and UV treatments for a diagnosis of vitiligo. Physical examination revealed vitiligo with areas of depigmentation of the scalp and face. There were no areas of scarring alopecia involving the scalp. Following examination, the examiner indicated that the Veteran had an established diagnosis of vitiligo which was under treatment. The examiner noted some re-pigmentation of the skin patches over the extremities and hairline. The examiner also observed that the Veteran had been diagnosed with alopecia areata, for which he was followed by a private dermatologist, which had now largely subsided with regrowth of scalp hair. The examiner indicated that review of the medical reference "Gulf War and Health: Volume 8: Update of Health Effects of Serving in the Gulf War" from the Institute of Medicine revealed that the committee studying the association of health outcomes to exposure to the Gulf War environment concluded that there was inadequate/insufficient evidence of an association between deployment to the Gulf War and skin disorders. Therefore it was less likely than not that the Veteran's alopecia and vitiligo were related to his military service, to include service in the Gulf War theater. The examiner further noted that there was also no established association between exposure to the Gulf War environment and development of autoimmune disorders such as vitiligo. The Board finds that the weight of the evidence does not demonstrate that the Veteran's current hair loss/skin disorders, to include vitiligo and alopecia areata, had their onset in service. While the Veteran was seen with complaints and diagnoses of heat rash in service, the evidence shows that these symptoms resolved with no further treatment, and that at the time of the separation examination in December 1994, clinical findings with regard to the skin, head, neck, face and scalp were normal. As such, the evidence does not demonstrate that any skin/hair loss disorder was present at the time of separation from active service. Furthermore, as noted above, the Veteran post-service treatment records confirm that he was not diagnosed with alopecia until 1998 and vitiligo until 2010. As to the Veteran's reports that he had skin problems/hair loss ever since his period of service, the Board finds that the contemporaneous evidence shows that the Veteran did not report having hair loss/skin problems at the time of his separation from service. Moreover, on his initial application for compensation, received in February 1995, the Veteran did not report having hair loss/skin problems. This suggests to the Board that there was no pertinent skin/hair loss symptomatology at that time. While inaction regarding filing a claim is not necessarily indicative of the absence of symptomatology, where, as here, a veteran takes action regarding other claims, it becomes reasonable to expect that the Veteran is presenting all issues for which he is experiencing symptoms that he believes are related to service. In other words, the Veteran demonstrated that he understood the procedure for filing a claim for VA disability compensation, and he followed that procedure in other instances where he believed he was entitled to those benefits. In such circumstances, it is more reasonable to expect a complete reporting than for certain symptomatology to be omitted. Thus, the Veteran's inaction regarding a claim for a hair loss/skin problems at the time of the 1995 application for benefits, when viewed in the context of his action regarding other claims for compensation, may reasonably be interpreted as indicative of the Veteran's belief that he did not suffer from hair loss/skin problems since service, or the lack of hair loss/skin problem symptomatology at the time he filed the claim, or both. Alopecia areata was first reported in July 1998, with Veteran reporting that it had been present for a few weeks. Vitiligo was first reported in 2010. This contemporaneous evidence outweighs and is more probative than are his assertions voiced years later and in connection with a claim for disability benefits. The above evidence is more probative than are his assertions, voiced well beyond his period of service, that any claimed skin problems/hair loss are related to his period of service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by a veteran). See also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). As to the Veteran's wife's statements that the Veteran has experienced spotted hair loss, including facial hair loss for about three years, since his Gulf War service, her statements are also contradicted by the Veteran's statements made contemporaneous to service and the statements made to family physicians with regard to his initial treatment for alopecia and vitiligo. For these reasons, the Board concludes that the assertions of hair loss/skin disorder symptoms since service are not credible. As to the Veteran's beliefs that his current skin/hair loss disorders are related to his period of service, the question of causation of such skin disorders/hair loss extends beyond an immediately observable cause-and-effect relationship, and, as such, the Veteran is not competent to address etiology in the present case. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." In this case, the Veteran does not have the requisite training or expertise to diagnose the cause of his current skin disorder/hair loss. Next, service connection may be granted when the evidence establishes a nexus between active duty service and current complaints. The Veteran was afforded the opportunity to provide medical evidence and/or an opinion relating his current skin disorder/hair loss to his period of service. He has not provided either medical evidence or an opinion to support this proposition. The March 2015 VA examiner, following a thorough examination of the Veteran and a complete review of the record, indicated that it was less likely than not that the Veteran's alopecia and vitiligo were related to his military service, to include service in the Gulf War theater, and provided detailed rationale to support his opinion. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for a hair loss/skin disorder, to include vitiligo and alopecia. Because the preponderance of the evidence is against the claim, 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 a skin disorder, is denied. REMAND As it relates to the claim of service connection for headaches, the Veteran was afforded a VA examination in April 2014. At the time of the examination, the examiner opined that it was less likely than not that any headache disorder was related to the Veteran's period of service. The basis for the examiner's opinion was that the Veteran did not have a chronic headache disability. In Janaury 2015, the Board remanded this matter for additional development, to include a VA examination. In conjunction with the Board remand, the Veteran was afforded a VA examination in March 2015. Following examination, the examiner rendered a diagnosis of migraine headaches. The examiner noted that the Veteran continued to experience headaches, which he attributed to a head injury that occurred during active service. The examiner observed that a review of medical records in VBMS confirmed evaluation for headache and head trauma on April 6, 1994. The examiner further noted that the Veteran reported that his primary care physician has diagnosed migraine headaches, and it was the VA examiner's opinion that the Veteran's description of his headaches was consistent with that diagnosis. Therefore the Veteran's diagnosis was migraine headaches. He stated that the headaches, however, were not related to any specific hazard present in the Gulf War theater. He opined that it was less likely than not that the Veteran's headaches were related to any specific hazards of service in the Gulf War. Further development is warranted based upon the above opinions. While the 2014 VA examiner's opinion indicates that it was less likely than not that the Veteran's current headache disorder was related to his period of service or his service-connected allergic rhinitis, the opinion was based upon the absence of any chronic headache disability. In contrast, the March 2015 VA examiner, specifically diagnosed the Veteran as having migraine headaches. He further noted that the Veteran had sustained a head injury in April 1994. While the examiner rendered an opinion that the Veteran's headaches were less likely than not related to any specific hazards of service in the Gulf War, he did not address whether the Veteran's now diagnosed migraine headaches were related to any incident in service, including the head injury in April 1994. Where the Board makes a decision based on an examination report that does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App. 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). Accordingly, the case is REMANDED for the following action: 1. Return the record to the VA examiner who conducted the March 2015 VA neurological examiner. Following a complete review of the record, the examiner is requested to render an opinion as to (a) whether it is at least as likely as not (50 percent probability or greater) that the Veteran's diagnosed migraine headaches are related to his period of service, to include the April 1994 in-service head injury. b) If not, is it as likely as not (50 percent probability or greater) that any current headache disorder is caused by the service-connected allergic rhinitis? (c) If not, is it at least as likely as not (50 percent probability or greater) that any current headache disorder is aggravated (permanently worsened) by the service-connected allergic rhinitis? If aggravation is found, to the extent that is possible, the examiner is requested to provide an opinion as to approximate baseline level of severity of the nonservice-connected disorder before the onset of aggravation. Complete detailed rationale is requested for any opinion that is rendered. 2. Review the claims file. If any development is incomplete, including if the examination report does not contain sufficient information to respond to the questions posed, take corrective action before readjudication. See Stegall v. West, 11 Vet. App. 268 (1998). 3. After undertaking any other development deemed appropriate, the AMC/RO should readjudicate the remaining claims on appeal. If the benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for future review. 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). ______________________________________________ K. J. Alibrando Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs