Citation Nr: 1753219	
Decision Date: 11/20/17    Archive Date: 12/01/17

DOCKET NO.  17-20 456	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES

1.  Entitlement to service connection for diabetes mellitus, type II (diabetes), to include as secondary to service-connected discoid lupus erythematous with scarring alopecia or due to environmental hazards during the Gulf War.

2.  Entitlement to service connection for degenerative joint disease (DJD), thumbs and fingers (claimed as bilateral hand pain and swelling), to include as secondary to discoid lupus erythematous with scarring alopecia or due to environmental hazards during the Gulf War.

3.  Entitlement to a disability rating in excess of 50 percent for discoid lupus erythematous with scarring alopecia.

4.  Entitlement to a total disability rating based on individual unemployability (TDIU).




REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

C. Boyd Iwanowski, Counsel


INTRODUCTION

The Veteran served more than 20 years with the National Guard before retiring in July 1999.  Her service included periods of active duty from August 1976 to May 1977 and from December 1990 to May 1991 when she was stationed in the Southwest Asia theater of operations during the Persian Gulf War.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois.

In an April 2017 statement, it was indicated the Veteran desired a hearing before the Board.  In an October 2017 correspondence, she withdrew that request.  The Board deems the request for a hearing to be withdrawn.  See 38 C.F.R. § 20.704 (2017).

Entitlement to a TDIU is an element of all increased rating claims.  Rice v. Shinseki, 22 Vet. App. 447, 453 (2009).  The Board finds that the derivative issue of entitlement to a TDIU has been raised by the record, and therefore, it has been added to the issues on appeal as reflected on the title page.  

The issue of entitlement to service connection for a mental condition, to include as secondary to service-connected disabilities, has been raised by the record in a May 2016 From VA 21-526EZ, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2017).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

The issues of entitlement to a disability rating in excess of 50 percent for discoid lupus erythematous with scarring alopecia and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1.  The evidence is against a finding that diabetes had onset in service or was otherwise due to service, to include exposure to environmental hazards in the Southwest Asia theater of operations or as secondary to service-connected discoid lupus erythematous with scarring alopecia.

2.  The evidence is against a finding that degenerative joint disease, thumbs and fingers, had onset in service or was otherwise due to service, to include exposure to environmental hazards in the Southwest Asia theater of operations or as secondary to service-connected discoid lupus erythematous with scarring alopecia.


CONCLUSIONS OF LAW

1.  The criteria for service connection for diabetes mellitus, type II have not been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.317 (2017).

2.  The criteria for service connection for degenerative joint disease, thumbs and fingers, have not been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.317 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In January 2011, the Veteran filed a claim for service connection for type II diabetes and bilateral hand pain and swelling due to lupus and Gulf War illness/syndrome.  

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

Generally, in order to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).  

Where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis or diabetes mellitus become manifest to a degree of 10 percent within one year from date of termination of such service, such diseases shall be presumed to have been incurred in service, even though there is no evidence of such diseases during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017).

Under section 3.310 of VA regulations, service connection may also be established on a secondary basis for a disability which is proximately due to, or aggravated by, service-connected disease or injury.  38 C.F.R. § 3.310.  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 

Because the Veteran served in the Southwest Asia theater of operations during the Persian Gulf War, service connection may also be established under 38 C.F.R. § 3.317.  Under that section, service connection may be warranted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest 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 not later than December 31, 2021.  See 38 U.S.C. § 1117 (2012); 38 C.F.R. § 3.317(a)(1) (2017).   For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A 1117(d) warrants a presumption of service connection.  A medically unexplained chronic multi-symptom illnesses is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (including irritable bowel syndrome (IBS)).  See 38 C.F.R. § 3.317.

The Board has reviewed all the evidence in the record.  Although the Board has    an obligation to provide adequate reasons and bases supporting this decision,    there is no requirement that the evidence submitted by the appellant or obtained     on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA.  VA shall consider all information and medical and lay evidence of record.  Where there is   an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Turning to the evidence, the Veteran's service treatment records (STRs), to include an August 1991 examination following her return from the Southwest Asia theater, do not indicate the presence of diabetes, concerns regarding blood sugar levels, complaints of hand pain or swelling or diagnosis of a condition affecting the hands or fingers.

Regarding diabetes, in May 2013, the Veteran underwent a VA examination.  It was noted the Veteran had been diagnosed with diabetes in 2010 and was prescribed an oral hypoglycemic agent.  The examiner reviewed the record and indicated there was no clear indication that diabetes began in service and it was less likely than not that diabetes occurred due to Gulf War exposures as the diabetes was not diagnosed until 2010 and there was no proven exposure risk in service.  It was noted the Veteran had a high A1c reading of 6.8 in 2004, but that was not repeated in 2010 and her glucose levels during that period were less than 126.  In addition, it was noted diabetes was less likely than not related to her discoid lupus.  The examiner commented that systemic lupus could lead to complications, but the Veteran had discoid lupus which was only shown to affect the skin.

In February 2017, the Veteran underwent another VA examination.  The examiner recognized the Veteran's diagnosis of diabetes in 2010.  The examiner explained that risk factors for type II diabetes mellitus include being over 40 years old, having a family history of diabetes, having high blood pressure, being overweight, being a person of South Asian, African-Caribbean or Black African descent, being a woman with a history of having polycystic ovaries, having a history of heart attack or stroke, having a mental illness and taking antipsychotic medication or having a history of gestational diabetes.  The examiner acknowledged that there are possible environmental exposures that might increase the risk for diabetes, to include chronic exposure to inorganic arsenic in drinking water, exposure to bisphenol A, and chronic exposure to organophohate and chlorinated pesticides.  However, there is no clear evidence of record that chronic exposure to such toxins/contaminants occurred while the Veteran served in Southwest Asia.  Regarding whether diabetes was aggravated beyond its natural progression by discoid lupus, the examiner found this less likely than not.  It was noted the Veteran was treated episodically with prednisone which can cause medication-induced diabetes; however, the medication use was sporadic and the Veteran continued to have diabetes when not using the medication.  The examiner explained there are no other treatments for discoid lupus that would clearly aggravate or cause diabetes.  In addition, the examiner noted the Veteran was now taking two medications for control of her diabetes and it is a natural progression of diabetes to require additional medication as the duration of diabetes continues. 

Regarding the Veteran's hands and fingers, the record reflects a diagnosis of degenerative joint disease (DJD), or arthritis, in the bilateral hands in 2009.

In May 2013, the Veteran underwent a VA examination.  It was noted that over many years the Veteran had developed bilateral finger pain, especially when attempting to firmly grip an object.  Upon examination, mild DJD in the thumb and the IP joints of the fingers was diagnosed in both hands.  

At another VA examination in February 2017, the Veteran indicated a burning sensation all over her hands and difficulty opening jars.  She indicated physical therapy did not help the pain.  Following review of the claims file and examination of the Veteran, the examiner noted that there is no medical evidence/research or literature to warrant any medical connection between DJD of the thumbs and fingers and discoid lupus because the disabilities affect entirely separate organ systems.  The examiner explained that discoid lupus is a dermatology condition, specifically an autoimmune disorder affecting the skin, whereas DJD is an orthopedic bone/joint condition.  The examiner pointed out that the Veteran's rheumatology records showed "no signs of systemic lupus."  The examiner also found there was no medical evidence/research or literature to warrant an aggravation of DJD beyond its natural progression by discoid lupus.  The disabilities affect entirely separate organ systems and the bilateral hand DJD was most likely a natural progression of the aging process, heredity and past occupation. The examiner went on to explain that lupus was not a form of arthritis, although it includes arthritis as one of the most common symptoms.  She stated it would be an "extremely rare patient with lupus who only had arthritis" without other symptoms identified as associated with systemic lupus.

Based on a careful review of the lay and medical evidence of record, the Board finds that the criteria necessary for establishing service connection for diabetes and for DJD in the bilateral hands have not been met.  Diagnoses of diabetes and DJD were made in 2010 and 2009, respectively, nearly 2 decades after the Veteran's most recent period of active duty service in 1991.  The evidence of record also does not support a finding that diabetes or DJD were caused or aggravated beyond their natural progression by the Veteran's discoid lupus erythematous, primarily because the Veteran's lupus has been shown to only affect her skin and is not a systemic disease.  In addition, diabetes and DJD do not qualify as chronic disabilities for the purposes of  38 C.F.R. § 3.317.  They are diagnosed disabilities that can be medically explained and they are not illnesses defined by a cluster of signs or symptoms that the Secretary has determined warrant a presumption of service connection due to service in the Persian Gulf.  See 38 C.F.R. § 3.317.  

The Board recognizes the Veteran's belief that her claimed conditions should be service-connected.  It is true that a layperson can provide evidence as to some questions of etiology; however, questions about the etiology of diabetes or DJD/arthritis or a relationship between diabetes or DJD/arthritis and service, which would require more than direct observation to resolve, are not in the category of questions that lend themselves to resolution by lay observation.  Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007).  

In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal.  As such, the claims for service connection for diabetes and DJD of the thumbs and fingers must be denied. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56.


ORDER

Service connection for diabetes mellitus, type II is denied.

Service connection for degenerative joint disease, thumbs and fingers, is denied.


REMAND

The Board regrets additional delay, but finds that further development is necessary to fully satisfy the duty to assist the Veteran in connection with the remaining claims.

Currently, the Veteran's discoid lupus is rated 50 percent disabling under Diagnostic Code (DC) 7809, used for evaluating discoid lupus erythematosus or subacute cutaneous lupus erythematosus.  Under this code, the disability is to be rated as disfigurement of the head, face, or neck (DC 7800), scars (DC 7801, 7802, 7803, 7804, or 7805), or dermatitis (DC 7806), depending on the predominant disability.  Ratings for discoid lupus under these diagnostic codes are not to be combined with a rating under DC 6350 (pertaining to systemic lupus erythematosus (disseminated)).  38 C.F.R. § 4.118.

As per the instructions in DC 7809, the RO has evaluated the Veteran's discoid lupus using the criteria under DC 7800, which applies to disfigurement of the head, face or neck.  38 C.F.R. § 4.118 (2017). 

In pertinent part, under DC 7800, a 50 percent disability rating is warranted where there are four or five characteristics of disfigurement; six or more characteristics of disfigurement warrant an 80 percent disability rating.  Visible or palpable tissue loss and gross distortion or asymmetry of the facial features would result in higher disability ratings based on the specific areas affected.  38 C.F.R. § 4.118 (2017).

The rating criteria list the eight characteristics of disfigurement as follows: scar five or more inches (13 or more cm) in length; scar at least one quarter inch (0.6 cm) wide at the widest part; surface contour of the scar elevated or depressed upon palpation; scar adherent to underlying tissue; skin hypo-or hyper-pigmented in an area exceeding six square inches (39 square cm); skin texture abnormal in an area exceeding six square inches (39 square cm); underlying soft tissue missing in an area exceeding six square inches (39 square cm); and, skin indurated and inflexible in an area exceeding six square inches (39 square cm).  38 C.F.R. § 4.118 (2017).

The Board notes that discoid lupus can also be rated under DC 6350 and that the Veteran's representative argued in support of such rating in an August 2017 Appellant's Brief.  However, the record shows that the medical evidence currently does not support a diagnosis of systemic lupus erythematosus.  Therefore, DC 6350 is not properly for consideration at this time.

In the June 2013 rating decision, a 50 percent rating for discoid lupus was continued.

VA treatment records dated in October 2013 and November 2013 indicate well-demarcated atrophic, depigmented patches with hyper-pigmented borders on the Veteran's scalp associated with discoid lupus.  The crown of the scalp was noted to have extensive white scarring and alopecia with hyper-pigmented borders.

In a May 2014 Disability Benefits Questionnaire (BDQ) submitted by the Veteran, it was noted the Veteran had a 10 x 14 centimeter scar on her scalp consistent with discoid lupus.  This was noted to be depressed on palpation, adherent to underlying tissue, hypo- and hyper-pigmented with atrophic skin texture with alopecia which was indurate and inflexible.  

In February 2016, the Veteran underwent a VA scars examination.  Scarring on the scalp measured 12 x 7 centimeters with alopecia.  It was noted the Veteran had multiple (5 or more) scars at the vertex of the head which were unstable with frequent loss of covering of skin over the scar, but were not painful.  The surface contour of the scars was depressed on palpation and hypopigmentation was noted.  

In a March 2016 VA treatment record, the Veteran reported the rash on her scalp was worsening and more hair was coming out and would not grow.  She also noted her skin was painful all over interfering with her sleep.  Vertex scaling with scarring alopecia and hypo- and hyper-pigmented patches consistent with discoid lupus were noted on the Veteran's scalp.  In a May 2016 VA treatment record, the Veteran again indicated discoid lupus was getting worse on her scalp and that her head was "burning."  In a March 2017 Report of General Information, it was noted the Veteran had called and reported that she experienced sores on her head all the time from lupus and could not wear a wig; she indicated having to wear a head wrap or scarf to cover the spots because she did not have any hair.  

Upon review, the Board finds that the evidence regarding the disfigurement caused by the Veteran's discoid lupus is unclear and there is evidence that the condition has worsened since the last VA examination.  Specifically, the May 2014 DBQ noted the scar on the Veteran's scalp adhered to underlying tissue and was indurated and inflexible, although such details were not noted in any VA treatment records dated from 2011 to May 2016 or at the February 2016 VA examination.  It also appears that the severity of the condition has worsened within the last year.  When the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a).

Regarding the issue of entitlement to a TDIU, the Board finds that further development is required to determine whether the Veteran is precluded from substantially gainful employment on account of her service-connected discoid lupus erythematosus and/or fibromyalgia.  On remand, the RO should undertake any development necessary to adjudicate a claim for entitlement to a TDIU.

Relevant ongoing medical records should also be requested.  38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992).

Accordingly, the case is REMANDED for the following action:

(This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Associate all VA treatment records from January 2017 to the present with the claims file.

2.  Schedule the Veteran for a VA examination to assess the current nature and severity of her service-connected discoid lupus erythematosus with scarring alopecia.

The record should be made available to and reviewed by the examiner.  All necessary tests should be performed. 

The examiner is asked to make the following medical determinations:

(a) Indicate whether the Veteran's lupus is productive of visible or palpable tissue loss, and either gross distortion or asymmetry of three or more features or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips.  Please specify the features or paired set of features affected.

(b) Identify each of the Veteran's lupus-related facial scars and state whether each scar:

(1) is 5 or more inches (13 or more centimeters (cm.)) in length; 
(2) is at least one-quarter inch (0.6 cm.) wide at widest	 part; 
(3) has a surface contour of a scar elevated or depressed on palpation; 
 (4) is adherent to underlying tissue; 
 (5) is hypo- or hyper-pigmented in an area exceeding 6 square inches (39 sq. cm.); 
(6) has skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding 6 square inches (39 sq. cm.); 
(7) has underlying soft tissue missing in an area exceeding 6 square inches (39 sq. cm.); or
(8) has skin indurated and inflexible in an area exceeding 6 square inches (39 sq. cm.).

(c) IF and ONLY IF, the Veteran's lupus is noted to be systemic and affecting more than just the Veteran's skin, state the frequency and duration of any exacerbations, specifically noting whether or not such disability is acute with frequent exacerbations, producing severe impairment in health.  If concluding that the Veteran's systemic lupus produces a severe impairment of health, please provide a complete rationale for this opinion.

(d) Comment upon the affect the Veteran's lupus has on her daily life and employment.

A rationale for any opinion offered should be provided.

3.  Undertake any development necessary to adjudicate the claim of entitlement to a TDIU, to include sending the Veteran proper notice as to the requirements for demonstrating entitlement and any development required to assess the functional impairment caused by the combination of her service-connected discoid lupus and fibromyalgia.

4.  After undertaking the development above, the Veteran's claims should be readjudicated, to include the claim for a TDIU.  If any benefit sought on appeal is not granted to the fullest extent, the Veteran and her representative should be furnished a supplemental statement of the case and be given an appropriate  period to respond thereto before the case is returned to the Board.

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. §§ 5109B, 7112 (2012).


______________________________________________
JENNIFER HWA
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs