Citation Nr: 1619796 Decision Date: 05/16/16 Archive Date: 05/27/16 DOCKET NO. 99-08 420A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for a skin disability, to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. Skiouris, Associate Counsel INTRODUCTION The Veteran had active service from November 1977 to May 1983 and from December 1990 to August 1991, including in the Southwest Asia Theater of operations during the Persian Gulf War. He also had additional U.S. Army National Guard (ANG) service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1998 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which denied several claims for service connection. After several remands, the Board denied service connection for a skin disorder in June 2013. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (hereinafter, "the Court"). In a January 2014 Order, the Court granted the parties Joint Motion for Remand (JMR), vacating and remanding the claims for compliance with the parties' instructions. The claim was remanded again by the Board in September 2014 and October 2015, and is now again before the Board. In November 2015, the Veteran submitted a waiver of initial agency of original jurisdiction (AOJ) consideration. See 38 C.F.R. § 20.1304 (2013). This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records. FINDINGS OF FACT 1. The Veteran's service personnel records confirm that he served in the Southwest Asia Theater of operations during the Persian Gulf War. 2. The Veteran's acne keloidalis nuchae was first documented in service. CONCLUSION OF LAW A skin disability, acne keloidalis nuchae, was incurred in service. 38 U.S.C.A. §§ 1110, 1117, 1118, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In letters issued in October 2008, March 2010, and July 2010 the VA notified the Veteran of the information and evidence needed to substantiate and complete his claim, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the RO and the Board. It appears that all known and available records relevant to the issue on appeal has been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise. The Veteran has been provided with VA examinations which address the contended causal relationship between the claimed disability and active service. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Given that the pertinent medical history was noted by the examiners, these examination reports set forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations. Thus, the Board finds the examinations of record are adequate for rating purposes and additional examination is not necessary regarding the claims adjudicated in this decision. See also 38 C.F.R. §§ 3.326, 3.327, 4.2. Additionally, a review of the claims file shows that there has been substantial compliance with the Board's remand directives. In summary, VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA. II. Law and Regulations Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military 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 of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a presently existing disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claim in-service disease or injury and the present disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)); Hickson v. West, 12 Vet. App. 247, 253 (1999). The appellant in this case is a "Persian Gulf Veteran" since he served in the Southwest Asia Theater of operations during the Persian Gulf War. See 38 C.F.R. § 3.317. Therefore, special presumptions apply which do not require that the disability be due to a known clinical diagnosis. Service connection may be established for a Persian Gulf War veteran who exhibits objective indications of chronic disability that cannot be attributed to any known clinical diagnosis, but which instead results from an 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. 38 C.F.R. § 3.317(a)(1). 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. Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. A disability referred to in this section shall be considered service-connected for the purposes of all laws in the United States. 38 C.F.R. § 3.317(a)(2)-(5). Effective March 1, 2002, the law affecting compensation for disabilities occurring in Persian Gulf War Veterans was amended. 38 U.S.C.A. §§ 1117, 1118. Essentially, these changes revised the term "chronic disability" to "qualifying chronic disability," and involved an expanded definition of "qualifying chronic disability" 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. 38 U.S.C.A. § 1117(a)(2)(B); 38 C.F.R. § 3.317. The term "medically unexplained chronic multisymptom illness" means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). With claims based on undiagnosed illness, the Veteran is not required to provide competent evidence linking a current disability to an event during service. Gutierrez v. Principi, 19 Vet. App. 1 (2004). Signs or symptoms that may be a manifestation of an undiagnosed illness or a chronic multi-symptom illness include: fatigue, unexplained rashes or other dermatological signs or symptoms, headache, muscle pain, joint pain, neurological signs and symptoms, neuropsychological signs or symptoms, signs or symptoms involving the upper or lower respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 U.S.C.A. § 1117(g); 38 C.F.R. § 3.317(b). Section 1117(a) of Title 38 of the United States Code authorizes service connection on a presumptive basis only for disability arising in Persian Gulf Veterans due to "undiagnosed illness" and may not be construed to authorize presumptive service connection for any diagnosed illness, regardless of whether the diagnosis may be characterized as poorly defined. VAOPGCPREC 8-98 (Aug. 3, 1998). Compensation may be paid under 38 C.F.R. § 3.317 for disability which cannot, based on the facts of the particular Veteran's case, be attributed to any known clinical diagnosis. The fact that the signs or symptoms exhibited by the Veteran could conceivably be attributed to a known clinical diagnosis under other circumstances not presented in the particular Veteran's case does not preclude compensation under § 3.317. Id. 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. Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. III. Facts The Veteran contends that he incurred a disability manifested by a skin disability during active service. He alternatively contends that his skin disability is due to an undiagnosed illness incurred while he was on active service in the Southwest Asia Theater of operations during the Persian Gulf War. He contends further that in-service exposure to nerve gas while on active service in Khamisayah, Iraq, during the Persian Gulf War caused or contributed to it. The Veteran's service personnel records confirm that he served in the Southwest Asia Theater of operations during the Persian Gulf War. The Veteran's service treatment records from his first period of active service show that, at his enlistment physical examination in October 1977, he denied all relevant pre-service medical history. Clinical evaluation was normal except for an asymptomatic left varicocele. The Veteran's medical history and clinical evaluation were unchanged on periodic physical examination in October 1978. A "Medical Clearance for CONUS Returnees" form dated in March 1983 indicates that the Veteran was medically clear for retirement from service following his return from overseas. On VA examination in July 1983, approximately 2 months after the Veteran's service separation in May 1983, no specific conditions were found. The Veteran's service treatment records from his ANG service show that, on periodic physical examination in December 1986, he denied all relevant medical history. Clinical evaluation showed a small papule on the right scapula. On periodic physical examination in August 1990, clinical evaluation of the Veteran showed a nevus on the right scapula. The Veteran denied all relevant medical history on a "Medical History Report" form completed in October 1990, just prior to his second period of active service. It was noted on this form that the Veteran had undergone a complete physical in August 1990 and was fit for mobilization. The Veteran's service treatment records from his second period of active service show that, on outpatient treatment in December 1990, the Veteran complained of pain in the back of the head due to a growth on the scalp. Objective examination showed a hypertrophic scar on the lower neck (back of the head) and patched areas of small papules at the scalp. The assessment was acne keloidalis nuchae. At his separation physical examination in July 1991, just prior to the end of his second period of active service, the Veteran denied all relevant medical history. Clinical evaluation was normal. A "Southwest Asia Demobilization/Redeployment Medical Evaluation" completed in July 1991 indicated that the Veteran denied experiencing any fatigue, rash, skin infection, or sores, or any exposure to chemical warfare or germ warfare during his recent deployment to Southwest Asia. In February 1995, no complaints were noted. The assessment included joint pain. According to an August 1995, Brooklyn VAMC record, the Veteran's clinical evaluation was normal. The Veteran complained of brown spots on his abdomen, back and itching lesions on his left arm. Physical examination showed irregular uniformly colored medium brown macules on the back and abdomen approximately 2 centimeters, wristband erythematous papules on the left arm 2 centimeters, and 2 blanching plaques. The Veteran was diagnosed with probable post-inflammatory hyperpigmentation, and probable contact dermatitis. On VA general medical examination in October 1995, the Veteran denied any current complaints. Physical examination was entirely negative. In a September 1996 statement, the Veteran asserted that he was getting rashes on his body. In a February 2003 Brooklyn VAMC treatment record, no complaints were noted. Physical examination showed firm papules on the back of the Veteran's scalp/neck. The assessment included acne keloidalis nuchae. In a May 2003, Brooklyn VAMC treatment record, the Veteran complained of bumps on his right arm. Physical examination showed a firm skin-colored plaque on the occipital scalp with surrounding erythematosus crusted papules and a 1 centimeter hyperpigmented nodule on the right flexural upper arm superior to antecubital fossa. The assessment was acne keloidalis nuchae and prurigo nodule. In June 2003, the Veteran stated that his skin lesions "are no longer pruritic." He also reported that his prurigo nodule on the left arm was "no longer pruritic and resolving." Physical examination showed a firm skin-colored plaque on the occipital scalp with minimal surrounding erythema, few crusted lesions, no pustules, and a 1 centimeter hyperpigmented nodule on the right flexural upper arm superior to antecubital fossa that was no longer lichenified. The assessment was unchanged. In August 2003, the Veteran complained of scalp lesions. The Veteran reported that he believed that he was exposed to chemicals "during Desert [S]torm in 1991." The assessment was a history of lesions to the back of the head in the scalp area and of the right upper extremity. In February 2005, physical examination showed a scalp lesion/scar. In August 2005, the Veteran complained that he had been scratching his acne keloidalis nuchae. Physical examination showed erythematosus and crusted papules and plaques on the dorsal neck with 1 pustule. The assessment was acne keloidalis nuchae. A review of the Veteran's SSA records, shows that they consist largely of duplicate copies of the Veteran's VA outpatient treatment records. The Veteran was awarded SSA disability benefits for psychiatric disabilities. On VA outpatient treatment in June 2008, physical examination showed a scalp lesion/scar. In a September 2008 statement, the Veteran contended that, because his active service unit had been near Khamisiyah, Iraq, in early March 1991, he had been exposed to nerve gas during active service. Attached to this statement was a copy of a letter from the Office of the Secretary of Defense in which he was advised that, when Iraqi rockets were destroyed by U.S. forces in Khamisiyah, Iraq, in early March 1991, "the nerve agents sarin and cyclosarin may have been released into the air. If you were with your unit at this time, you may have been in an area where exposure to a very low level of nerve agents was possible. However, our analysis shows that the exposure levels would have been too low to activate chemical alarms or to cause any symptoms at the time." (Emphasis in original.) The Veteran also was advised that "low level exposure to nerve agents" was unlikely to cause any long-term health problems. On VA skin diseases examination in June 2010, the Veteran complained of a skin rash "starting 1972 on/off. May be worsening with each episode." He also complained of itching. The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records. The Veteran used zinc soap and coal tar shampoo weekly to treat his skin problems. Physical examination showed a healing abrasion of the left wrist and mild eczema and scaling on the groin fold. This affected less than 1 percent of the entire body and zero percent of the exposed areas of the body. The VA examiner opined that he could not determine if the Veteran's skin disability had any relation to his service, or specifically related to nerve agent exposure, without resorting to speculation. The diagnoses were abrasion secondary to recent trauma of the left wrist that was healing and tinea cruris. The Veteran underwent a VA examination in October 2011 at the Brooklyn VA Campus. The Veteran reported a skin condition that he suffered from following discharge from service. The medical records indicate he was seen in August 1995 for brown macules on the back and abdomen and on one wrist. The Veteran was seen by a dermatology resident at that time, with the impression being probable contact dermatitis. The Veteran complained of itching and hyperpigmentation and mild erythema in the inguinal areas bilaterally. The Veteran also had a keloid on the nuchal region of his scalp. The Veteran reported that the skin eruption in his groin began roughly in the mid 1990's. The Veteran reported that he was driving a bus and he developed the skin eruption. In August 2005 he was seen at the dermatology clinic, for some plaque in the dorsal aspect on the nuchal area of his neck. At the time of examination, the Veteran had a keloid in that region 2cm in length. Additionally on examination in October 2011, the Veteran had mild hyperpigmentation and erythema with occasional itching in the inguinal region bilaterally. The Veteran did not have a skin condition that caused scarring or disfigurement of the head, face, or neck. The Veteran did not have a benign or malignant skin neoplasm. The Veteran did not have systemic manifestations due to any skin diseases, such as fever, weight loss, or hypoproteinemia. The Veteran had not been treated with oral or topical medications in the past 12 months. The Veteran had not had any debilitating, or non-debilitating, episodes in the past 12 months due to urticarial, erythema multiforme, primary cutaneous vasculitis, or toxic epidermal necrolysis. The total amount of the area that was exposed was 1 percent, and of the entire body was 2 percent. The Veteran was negative for acne, vitiligo, scarring alopecia, alopecia areata, and hyperhidrosis. The Veteran had no benign or malignant neoplasm or metastases related to any of the diagnoses. There were no neoplasms. The Veteran had mild itching in the groin area. In conclusion, the examiner stated that the Veteran in the mid 1990's developed what appeared to be at that time, mild intertrigo with possible tinea cruris. It was mild in nature, and the Veteran was not treating it. The Veteran also had a keloid on the nuchal region of his scalp which started about the same time, in the mid 1990's. The examiner opined that the two disorders were not a result of any nerve gas exposure. On December 7, 2012, an addendum to the October 2011 VA examination was rendered. The examiner stated that the skin intertrigo and tinea cruris are common and related more to irritation from sweat and maceration, and keloids can be spontaneous or secondary to folliculitis or trauma. In a December 26, 2012, medical opinion, a different VA physician stated that following a review of the claims file, the Veteran's skin condition was less likely than not a result of service. The rationale provided was that service treatment records note warts of the Veteran's penis and psueudofolliculae barbae, which were acute and transitory. The rationale was that there was "a lack of medical evidence to support [the Veteran's] alleged symptomatology" due to his skin condition. The examiner went on to state that there was no medical documentation "to support these claimed symptoms" during active service or "for at least 15+ years post separation [from service]." The examiner concluded that the Veteran's claimed skin condition was less likely than not related to active service. In November 2014 a medical officer conducted a VA Medical Review. The examiner concluded that the Veteran's symptoms of a skin disorder was at least as likely as not a medically unexplained chronic multisymptom illness. The Veteran entered his second period of service with no symptoms or physical findings of undiagnosed illness or medically unexplained chronic multisymptom illness. During his second period of active service, the Veteran was seen for a skin disorder in December 1990, for pain in the back of his head, with a provisional diagnosis of growth on the scalp, and for an acne keloid nuchae, with a hypertrophic scar on the lower neck. The examiner opined that the Veteran at least as likely as not had a medically unexplained chronic multisymptom illness with symptoms of a skin disorder, that persisted for six months or more. The Veteran underwent a VA examination in November 2015 at the Brooklyn VAMC. The Veteran's medical history was identified as being normal, with no symptoms, or abnormal findings. The Veteran made no medically related complaints. There were no diagnosed illnesses for which no etiology was established. The Veteran made no reports of any additional signs or symptoms not addressed through the disability benefits questionnaire. There were no additional signs and or symptoms that may represent as an undiagnosed illness, or diagnosed medically unexplained chronic multi-symptom illness. The examiner noted the Veteran does not have a chronic disability pattern related to Southwest Asia service. The Veteran does not have an undiagnosed illness, or a diagnosable chronic multisymptom illness with a partially explained etiology. There is no diagnosis of a skin condition. The examiner concluded the Veteran does not suffer from, nor has he suffered from, hyperpigmentation of the head, face, or neck, in an area exceeding six square inches. The Veteran does not have a skin condition that covers at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected. The Veteran does not require intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12 month period. IV. Analysis In brief, what this record shows is the initial medical finding of acne keloidalis nuchae occurred in service in December 1990, shortly before the Veteran's deployment to Southwest Asia. Thereafter, the condition was periodically mentioned over the years in the treatment records, including in 2003, 2005, 2008, and 2011. The record also shows the Veteran was periodically seen by medical personnel over the years since his 1991 service discharge for other skin conditions, variously diagnosed as contact dermatitis, hyperpigmentation, prurigo nodule, eczema, and tinea cruris. Most of those who have examined the Veteran did not find these other skin conditions were related in any way to service, yet one considered skin disability to be a component,( along with joint pain and dizziness), of a medically unexplained chronic multisymptom illness. The RO separately service connected the Veteran's joint pain and dizziness, but it appears that because the skin findings were not disabling to a compensable degree, a skin disorder was not service connected. While that may be the case under the theory of entitlement set out in 38 C.F.R. § 3.317, it is not the case more generally. As mentioned, the acne keloidalis nuchae was first diagnosed on active duty in December 1990, before any service of the Veteran in Southwest Asia. It has been observed periodically thereafter. The onset of a current disability in service plainly satisfies the requirements of service connection. Accordingly, a basis upon which to establish service connection for acne keloidalis nuchae has been presented. ORDER Entitlement to service connection for a skin disability, acne keloidalis nuchae, is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs