Citation Nr: 1602459	
Decision Date: 01/21/16    Archive Date: 01/28/16

DOCKET NO.  13-31 393A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUES

1.  Entitlement to service connection for acne.

2.  Entitlement to service connection for allergic rhinitis, claimed as sinusitis.

3.  Entitlement to service connection for irritable bowel syndrome (IBS), to include as secondary to the service-connected posttraumatic stress disorder (PTSD).

4.  Entitlement to service connection for a gynecological disability, claimed as human papillomavirus (HPV).

REPRESENTATION

Appellant represented by:	Margaret Matthews, Agent


ATTORNEY FOR THE BOARD

R.M.K., Counsel
INTRODUCTION

The Veteran served on active duty from May 2006 to November 2006 and from June 2008 to April 2009.  The Veteran also had additional service in the United States Navy Reserves.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2013 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island.  Jurisdiction over the claims was subsequently transferred to the RO in Boston, Massachusetts.

The gynecological issue on the title page has been characterized to reflect the evidence and circumstances of the case.  See Clemons v Shinseki, 23 Vet. App. 1, 5 (2009).

In response to the Veteran's request, a travel Board hearing in regards to the issue of service connection for acne was scheduled to be held in December 2015; however, the Veteran withdrew this hearing request in December 2015.  As such, the Board considers the hearing request withdrawn.  38 C.F.R. § 20.704 (2015).

The Board notes that the Veteran changed representatives during the pendency of her claims.  Margaret Matthews is recognized as her current agent, as the appropriate VA forms are associated with the electronic claims file.

This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems.  Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records.

Review of the evidence in VBMS shows that the Veteran raised many issues in statements received in May 2014 and in July and August 2015, to include entitlement to service connection for major depression, bipolar disorder, anorexia, insomnia, hypersomnia, anxiety, headaches, hiatal hernia, chronic fatigue syndrome, bursitis, fibromyalgia, sinus arrhythmia; and raised the issues of entitlement to increased ratings for PTSD, migraines, and tinnitus.  These issues are referred to the Agency of Original Jurisdiction (AOJ) for appropriate action.  38 C.F.R. § 19.9(b) (2015). 

The issue of entitlement to service connection for acne is decided below, all other issues on appeal are addressed in the REMAND portion of the decision and are REMANDED to the AOJ.


FINDING OF FACT

The Veteran does not have a skin disorder other than what has already been service-connected as folliculitis.


CONCLUSION OF LAW

The criteria for the establishment of service connection for a skin disorder other than what has already been service-connected as folliculitis has not been met.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

In correspondence dated in April 2013, prior to the June 2013 rating decision, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2014) and 38 C.F.R. § 3.159(b) (2015), known as the Veterans Claims Assistance Act of 2000 (VCAA).  Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide.  Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2014) and 38 C.F.R. § 3.159(c) (2015).  All identified and available service and post-service treatment records have been secured.

The Board notes that a VA examination and addendum opinion were obtained for the Veteran's claim in April and June 2015.  When taken together, review of this evidence reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate evaluations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record.  The Board, therefore, concludes that this examination report and addendum taken together are adequate for purposes of rendering a decision in the instant appeal.  See 38 C.F.R. § 4.2 (2015); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 

The Board also observes that all appropriate due process concerns have been satisfied.  See 38 C.F.R. § 3.103 (2015).  Therefore, the duties to notify and assist have been met.

Legal Criteria 

In general, service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2015). 

In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 

The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999). 

The Board notes that certain "chronic disease[s]" are listed under 38 C.F.R. § 3.309(a).  For these conditions, 38 C.F.R. § 3.309(b) applies.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  However, not all diseases may be considered "chronic" from a medical standpoint.  Rather, the Federal Circuit held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  Walker, 708 F.3d at 1338.  An acne disorder is not explicitly recognized as a chronic disease under 38 C.F.R. § 3.309(a).  Thus, the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) is not for application.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the 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); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Analysis

The Veteran's service treatment records document that in October 2008 she was seen for a skin rash and diagnosed with urticaria.  

Post-service, in a February 2010 and December 2012 report of medical history, the Veteran reported that she had acne.  

The Veteran was afforded a general VA medical examination in May 2013 in which the examiner diagnosed acne but did not provide an etiological opinion. 

The Veteran was afforded a VA examination in April 2015 in which the VA examiner stated that service treatment records documented evaluation and treatment for an acne/folliculitis condition; thus, it was at least as likely as not that the current skin condition was incurred in or caused by military service.  

In an addendum opinion received in June 2015, contained in Virtual VA, the same VA examiner stated that the current diagnosis of folliculitis was the same condition as the acne in service.  The examiner further stated that specific treatment in October 2012 could be described as acne or folliculitis and that treatment for urticaria was not acne or folliculitis.  

Subsequently in a June 2015 decision, service connection for folliculitis (also claimed as eczema of back, chest, bilateral arms, genital area, folds of ears and chin) was granted.  The rating assigned for this condition has clearly included skin conditions affecting the Veteran's body.  Given that the medical evidence has equated the Veteran's in-service acne to the current diagnosis of folliculitis, and the RO has granted service connection for the disability, no separate skin disability relating to acne is present which warrants a separate grant of service connection. 


ORDER

Service connection for a separate skin disability to account for acne (which is already included in the service-connected folliculitis) is denied.


REMAND

The Board finds that additional evidentiary development is required before the Veteran's claims are adjudicated. 

At the outset, the Board notes that correspondence in January 2015 indicates that the Veteran is in receipt of Social Security Administration (SSA) disability benefits.  On remand, the RO must make as many requests as necessary to obtain the Veteran's SSA records and associate them with her claims file.  See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992)

Allergic Rhinitis / Sinusitis 

Service treatment records note treatment for sinusitis in August and October 2008.

VA treatment records show a February 2013 active problem list noting sinusitis in February 2012 and allergic rhinitis in August 2012.  A treatment note from June 2012 also noted rhinitis and sinus pressure during spring and late fall/winter with likely pollen, oral food allergy syndrome, and birch allergy. 

The Veteran was afforded a general VA medical examination in May 2013 in which the examiner diagnosed allergic rhinitis but did not provide an etiological opinion.

The Board notes that seasonal and other acute allergic manifestations subsiding on the absence of 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 (2015). 

In this case, it is not clear whether the Veteran's sinusitis in service was merely seasonal and whether the currently diagnosed sinusitis is the same disability or if it and allergic rhinitis are causally related to service.  Therefore, the Board finds that a remand for a medical opinion is needed.

IBS

Service treatment records note complaints of constipation in March 2009.

Post-service treatment records are also replete with complaints and diagnoses of constipation.

The Veteran was afforded a general VA medical examination in May 2013 in which the examiner did not find any findings or symptoms indicating a current diagnosis of IBS.  However, the Board notes that VA treatment records contained in Virtual VA show that in August 2014 the assessment/plan included "long-term IBS and problems with constipation, a lot related to [Veteran's] emotions".  Moreover, in an August 2015 VA treatment record the assessment was "? IBS with constipation".

The Board also notes that in August 2015 the Veteran asserted that her claimed IBS was secondary to her service-connected PTSD.

In this case, it is not clear whether the Veteran has a current disability of IBS; and if so, whether the IBS is causally related to service or is secondary to the service-connected PTSD.  Therefore, the Board finds that a remand for a medical examination and opinion is needed.

Gynecological Disability

The Board notes that multiple medical diagnoses that differ from the claimed condition do not necessarily represent a separate claim, and what constitutes a claim cannot be limited by a lay Veteran's assertion of the condition in an application for benefits, but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim.  Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009).  Because the evidence indicates that the Veteran may have different gynecological conditions or diagnoses than the claimed HPV disability currently before the Board, this issue has been amended as set forth on the first page of this decision. 

The Veteran contends that while she was deployed in Iraq, shortly after September 2008, she was raped by one of the members deployed with her unit.  She asserts that this rape exposed her to HPV.  The Veteran stated in an April 2012 statement that she was subsequently also raped by another member of her unit.

Service treatment records show that in a March 2009 report of medical assessment, it is noted that the Veteran was told that she had HPV exposure.

The Veteran was afforded a general VA medical examination in May 2013 in which the examiner diagnosed HPV but did not provide an etiological opinion.

In line with the holding in Clemons, the Board notes that the Veteran has been diagnosed with other gynecological conditions, including a February 2013 VA problem list noted a diagnosis of herpes simplex virus (HSV) in November 2011; a July 2015 VA problem list noted diagnoses of urethritis in November 2013 and atrophic vaginitis in May 2014.

In this case, the nature and etiology of the Veteran's gynecological conditions are not clear, to include whether any gynecological disability diagnosed during the pendency of this appeal is causally related to service.  Therefore, the Board finds that a remand for a medical examination and opinion is needed.

Accordingly, the case is REMANDED for the following action:

1.  Request the Veteran's Social Security Administration (SSA) records relating to her disability benefits.  All attempts to secure this evidence must be documented in the claims file.  If, after making reasonable efforts to obtain these records the AOJ is unable to secure them, it must notify the Veteran and (a) identify the specific records it is unable to obtain; (b) briefly explain the efforts that it made to obtain those records; (c) describe any further action to be taken with respect to the claims; and (d) inform the Veteran that she is ultimately responsible for providing the evidence.  The Veteran and her representative must then be given an opportunity to respond.

2.  Return the record to the May 2013 VA examiner for addendum medical opinions regarding the etiology of her sinusitis and allergic rhinitis.  Access to the electronic claims file and a copy of this Remand must be made available to the examiner.  The examiner shall note in the examination report that the record and the Remand have been reviewed.  If the May 2013 VA examiner is not available, the record should be provided to appropriate medical professional(s) so as to render the requested opinions.  The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinions.

The examiner is requested to specifically address the following:

(a) Whether it is at least as likely as not (i.e., to at least a 50 percent degree of probability) that the Veteran's sinusitis during service represented a seasonal and other acute allergic manifestation that subsided on the absence of or removal of the allergen. 

(b) If the examiner's opinion is that the symptoms of sinusitis do not represent seasonal or acute allergic manifestations, provide an opinion on whether it is at least as likely as not (i.e., to at least a 50 percent degree of probability) that the Veteran's current sinusitis began in or is causally or etiologically related to symptomatology shown during service. 

(c) Whether it is at least as likely as not (i.e., to at least a 50 percent degree of probability) that the Veteran's allergic rhinitis represents a seasonal and other acute allergic manifestation that subsided on the absence of or removal of the allergen. 

(d) If the examiner's opinion is that the symptoms of allergic rhinitis do not represent seasonal or acute allergic manifestations, provide an opinion on whether it is at least as likely as not (i.e., to at least a 50 percent degree of probability) that the Veteran's current allergic rhinitis began in or is causally or etiologically related to service. 

3.  Schedule the Veteran for an examination to determine the nature and etiology of the Veteran's IBS, which is diagnosed in the treatment records.  All testing deemed necessary must be conducted and the results reported in detail.  Upon review of the record, to include the examination results, the examiner is asked to provide opinions as to the following:

a.  Whether it is at least as likely as not (i.e., to at least a 50 percent degree of probability) that the IBS began in or is causally or etiologically related to symptomatology shown during service. 

b. Whether it is at least as likely as not (i.e., to at least a 50 percent degree of probability) that any diagnosed IBS has been caused by the service-connected PTSD.  

c.  Whether it is at least as likely as not (i.e., to at least a 50 percent degree of probability) that any diagnosed IBS has been aggravated by the service-connected PTSD.  Aggravation means that there is a permanent worsening beyond the natural progression of the IBS due to the service-connected PTSD. 

If aggravated, specify the baseline of disability prior to aggravation if possible, and the permanent, measurable increase in disability resulting from the aggravation.

The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached.  The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it.

4.   Schedule the Veteran for an examination to determine the nature and etiology of any currently diagnosed gynecological disabilities, to include HPV, HSV, urethritis and atrophic vaginitis.  All testing deemed necessary must be conducted and the results reported in detail.  Upon review of the record, to include the examination results, the examiner is asked to provide opinions as to the following, with respect to each such diagnosed disability:

a.  Whether it is at least as likely as not (i.e., to at least a 50 percent degree of probability) that any such disability began in or is causally or etiologically related to symptomatology shown during service.

The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached.  The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it.

Note that the Veteran is service-connected for PTSD, the diagnosis of which was based in part on allegations of rape in service.  

5.  After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, readjudicate the claims on appeal.  If the issues on appeal remain denied, a supplemental statement of the case must be provided to the Veteran and her representative.  After the Veteran and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

The appellant has the right to submit additional evidence and argument on the 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).



_________________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs