Citation Nr: 1622442 Decision Date: 06/03/16 Archive Date: 06/13/16 DOCKET NO. 10-34 003 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a skin disability, claimed as tinea pedis and tinea cruris. 2. Entitlement to service connection for fibromyalgia. 3. Whether new and material evidence has been received to reopen a claim of service connection for an eye disability. REPRESENTATION Appellant represented by: Robert W. Gillikin, III, Attorney at Law ATTORNEY FOR THE BOARD T. Matta, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1979 to June 1982 and from November 1990 to July 1991, with service in the Southwest Asia theater of operations during the Persian Gulf War. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Huntington, West Virginia Department of Veterans Affairs (VA) Regional Office (RO). These matters are now in the jurisdiction of the Roanoke, Virginia RO. In his August 2010 substantive appeal, the Veteran requested a videoconference hearing. In a September 2012 report of contact, the Veteran's attorney withdrew this hearing request. A November 2013 Board decision (by a Veterans Law Judge other than the undersigned) reopened the Veteran's claim of service connection for a skin disability and remanded these matters for additional development. They have now been assigned to the undersigned. The Board notes that a November 1999 Board decision denied the Veteran's claim of service connection for fatigue, claimed as due to an undiagnosed illness. He did not appeal that decision and it became final. Fibromyalgia was not considered in the Veteran's original claim and the Board's decision. While the Board notes that the Veteran's claim of service connection for fibromyalgia includes reports of fatigue, the Board finds that this claim is separate from his previously denied claim for fatigue. Thus, the claim will be reviewed as an original claim for entitlement to service connection rather than a request to reopen. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if action on his part is required. REMAND The Board finds that further development of the record is necessary to comply with VA's duty to assist the Veteran in the development of facts pertinent to his claims. With respect to the Veteran's request to reopen a claim of service connection for an eye disability, the Veterans Claims Assistance Act of 2000 (VCAA) requires that certain assistance be provided to a claimant even prior to any consideration of whether a previously finally denied claim may be reopened. This includes that the VA make reasonable efforts to obtain records alleged to be pertinent from private medical care providers. As an initial matter, the record suggests that the medical evidence is incomplete. In a July 2010 statement of the case, the regional office (RO) referred to Salem VA Medical Center treatment records from January to December 2006. Such records are not associated with the Veteran's claims file. It is also unclear as to whether the Veteran is receiving any private treatment for the disabilities on appeal. A February 2009 statement in support of claim includes the following statement: "Has been seen by me on multiple occasions with dermatitis and musculoskeletal complaints." Although the statement is signed, the signature is not legible and there are no other means of determining who made the statement and whether the person works for VA or in a private facility. As VA and/or private treatment records are likely to contained pertinent information (and VA treatment records are constructively of record), they must be secured. Fibromyalgia and a Skin Disability The Veteran states that his fibromyalgia and skin disabilities are related to his service in Southwest Asia. On June 2014 VA fibromyalgia examination, the Veteran reported being tired for a long time, which he attributed to not sleeping well at night. The VA examiner found that the Veteran did not have any symptoms meeting VA criteria for fibromyalgia and opined that fatigue is not fibromyalgia. On June 2014 VA skin diseases examination, onychomycosis and tinea corporis were diagnosed. The examiner noted that the Veteran has never been diagnosed with tinea pedis and may, historically, have had tinea cruris, but there was no evidence of this at the time of examination. Although the examiner noted that the Veteran's skin condition is "completely consistent" with dyshidrotic eczema, such was not diagnosed. Further, he determined that dyshidrotic eczema did not occur in service and has no known specific cause except a genetic disposition. The examiner further stated that tinea conditions are specific acute conditions that fully resolve; any recurrences are new, unrelated conditions. Because the Veteran served in Southwest Asia during the requisite time period, the provisions of 38 C.F.R. § 3.317 (2015), which pertains to compensation for certain disabilities occurring in Persian Gulf Veterans, are for consideration. Fatigue, signs or symptoms involving skin, and sleep disturbances are specifically listed in 38 C.F.R. § 3.317 as a sign or symptom which may be a manifestation of undiagnosed illness or medically unexplained chronic multisymptom illness and, therefore, further examination is necessary. Specifically, because the Veteran's service in the Persian Gulf was not considered during the June 2014 VA skin diseases and fibromyalgia examinations, the Board finds that another VA examination is warranted. Accordingly, the case is REMANDED for the following: 1. Ask the Veteran to identify all providers of evaluations or treatment he received for the disabilities on appeal and to provide authorizations for VA to obtain records of any such private evaluations or treatment. The Veteran should be specifically asked to identify the author of the handwritten statement contained in the February 2009 statement in support of claim, and requested to provide an authorization for VA to obtain records from the identified provider. The AOJ should secure for the record complete clinical records of the evaluations and treatment identified (i.e., any not already associated with the record). If any private records identified are not received pursuant to the AOJ's request, the Veteran should be so notified and advised that ultimately it is his responsibility to ensure that private records are received. 2. The AOJ should specifically secure for the record complete clinical records of all VA evaluations and treatment the Veteran has received for fibromyalgia, an eye disability, and/or a skin disability, to specifically include records from the Salem VAMC from January to December 2006. 3. Thereafter, arrange for a VA Gulf War examination to determine the nature and cause of the Veteran's fibromyalgia and skin disabilities (and any symptoms potentially associated with either). The examiner is asked to review the pertinent evidence, including the Veteran's lay statements regarding his symptoms, and undertake any indicated studies. Then, based on the results of the examination, the examiner is asked to address each of the following questions: (a) Please identify all diagnoses to which the Veteran's reports of fibromyalgia and a skin disability are medically attributable. (b) As to each disability entity diagnosed, is it at least as likely as not (a 50 percent or greater probability) that such disability was manifested during the Veteran's active duty service or is otherwise causally related to such service? In answering this question, please specifically address the significance (if any) of any pertinent environmental exposures associated with his service in the Persian Gulf. The examiner should also fully consider the Veteran's lay statements regarding onset and postservice symptoms. (c) The examiner should offer an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's reported symptoms of fibromyalgia and skin disabilities represent a "medically unexplained chronic multisymptom illness." Such is defined as a diagnosed illness without conclusive pathophysiology or cause 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; additional signs and symptoms include fatigue, signs or symptoms involving the skin, muscle pain, joint pain, and sleep disturbances. The examiner must explain the rationale for all opinions, citing to supporting factual data and/or medical literature, as appropriate. The examiner should take into consideration that the Veteran is competent to report in-service and postservice symptom experiences. 4. The AOJ should arrange for any further development suggested by the results of that sought above, and then review the record (specifically including all additional evidence received pursuant to this remand) and readjudicate the Veteran's claims (service connection for a skin disability, service connection for fibromyalgia, and whether new and material evidence has been received to reopen a claim of service connection for an eye disability). If any remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his attorney the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2015). _________________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2015), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).