Citation Nr: 1803146 Decision Date: 01/17/18 Archive Date: 01/29/18 DOCKET NO. 07-01 793 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for an immune system disorder, to include as due to an undiagnosed illness. 2. Entitlement to service connection for a skin rash. ATTORNEY FOR THE BOARD P. Mays, Associate Counsel INTRODUCTION The Veteran served in the United States Army from June 1986 to June 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from n July 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. This matter was previously remanded in September 2008 and February 2011 in pertinent part to obtain the Veteran's medical and personnel records, to determine whether the Veteran had Gulf War service, to attempt to verify nerve gas exposure, and to provide a VA examination if deemed necessary. These actions were completed. There was substantial compliance with the Board's remand directives. See Stegall v. West. 11 Vet. App. 268, 271 (1998). In September 2008, the Board also remanded the issue of entitlement to service connection for a left knee disability. The claim was granted by the RO in a November 2010 rating decision. The Veteran did not appeal this decision and therefore the issue is no longer before the Board. The issue of entitlement to service connection for a skin rash disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT There is no competent evidence that the Veteran has an immune disorder. CONCLUSION OF LAW The criteria for entitlement to service connection for an immune disorder, to include an undiagnosed illness have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA's duty to notify was satisfied by letters dated March 2004 and October 2008. 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's post-service medical treatment records, including VA treatment records and private treatment records, have been obtained to the extent they were both identified and available. A VA opinion with regard to the Veteran's immune system disability claim was provided in October 2017. The VA opinion is adequate with respect to immune disorder because it is based upon a thorough review of the record and provides a well-reasoned rationale based upon review of medical literature. Based on the foregoing, the Board concludes that VA has complied with its duty to assist the Veteran in establishing his claim. II. Service Connection for an Immune System Disorder The Veteran contends that he developed an immune disorder as a result of his service. In his December 2006 Notice of Disagreement (NOD), he asserts that while attending school as Chemical Officer at Fort McClellan, Alabama, he was exposed to a nerve agent. He alleges that he was exposed to live agents and decontaminated as a part of chemical testing. He subsequently asserted that he developed an immune system disorder as a result of his preparation for service during the Gulf War. Establishing service connection on a direct basis generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). In making its determination, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may also be granted on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of qualifying chronic disability, including 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 21, 2016, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117 (2012); 38 C.F.R. § 3.317 (a)(1) (2017). The Southwest Asia theater of operations refers to Iraq, Kuwait, 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. 38 C.F.R. § 3.317 (e)(2) (2017). In claims based on qualifying chronic disability, 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 (2004). Notably, laypersons are competent to report objective signs of illness. The Veteran was found to have Gulf War Syndrome by a private physician in 2003. Upon remand in September 2008, in the Board requested clarification as to whether the Veteran had service in Southwest Asia during the Persian Gulf War as the basis to consider the claim for service connection for an immune system disorder due to undiagnosed illness A review of the Veteran's from DD-214 and military personnel records does not show that the Veteran had active military service in the Persian Gulf or Southwest Asia. The Veteran contends that his unit was prepped for deployment and given Anthrax, but not that he was actually deployed to the Gulf. Additionally, his service personnel records show that his foreign service took place in Germany. As such, he is not considered a Persian Gulf Veteran as he did not serve in the Persian Gulf region. Therefore, the Veteran herein is not entitled to a Gulf War presumption. The failure to establish a presumptive basis of service connection does not preclude the Veteran from establishing service connection on another basis. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); 38 U.S.C. § 1113(b). The Veteran may establish service connection on a direct basis. The initial criterion to establish a claim for service connection is current evidence of the disability claimed. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Veteran's service treatment records (STRs) do not show that he was treated for an immune disorder during service. A VA opinion was provided in October 2017. The examiner did not find that the Veteran had a current disability, nor did she determine that such disability was related to service. The examiner noted that at one point in the 1990's the Veteran was diagnosed by a rheumatologist with lupus, an inflammatory disease, which attacks the immune system. However, the examiner then noted that after being seen by a second rheumatologist, Gulf War Syndrome was the relevant diagnosis. The examiner reviewed medical literature and the record and opined "there is no medical, clinical, or significant research evidence to support the contention that the Veteran has a diagnosis of an immune system condition that is caused by or the result of exposure of nerve agent during service." Additional records note that a diagnosis of lupus was ruled out by diagnostic testing. Dr. D.L., a private physician, opined in December 2003 that the Veteran had had rhabdomyolysis in 2002, which had no clear etiology, but was attributed to viral syndrome and weightlifting. He noted that a subsequent physician believed the Veteran had Gulf War syndrome; however no formal diagnosis was ever made. The medical evidence also shows that the Veteran received an anthrax vaccine, which was attributed to an arthritic condition. There is no medical or lay indication the vaccine led to an immune disorder. The only evidence in support of the conclusion that the Veteran has an immune system disorder consists of the Veteran's his family's lay statements. The Veteran's mother indicated in correspondence dated in October 2005 that the Veteran suffered rashes on his face and scalp, and fatigue since service. His sister stated in April 2009, that she did not see the Veteran very much, but that he had told her about his "mysterious" illnesses and how he believed they were related to his military service. None of these statements are sufficient to establish that the Veteran has an immune disorder. In this case, the Veteran and his family are not competent to diagnose the Veteran with an immune disorder, which requires specialized training, skills, and expertise. See Jandreau v. Nicholson, 492 F.3d 1372 at 1376-77 (Fed. Cir. 2007); King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012.); Kahana v. Shinseki, 24 Vet. App. 428 (2011). Diagnosing an immune disorder resulting from chemical exposure involves medical inquiry into biological processes and pathology that are not readily observable and are outside the competence of the Veteran and his family in this case, as they do not have the skills, expertise, or training needed to make such a determination. While the Veteran may truly believe he has an immune disorder as a result of his in-service exposure, an investigation by a competent medical professional evidence does not support his contention. The greater weight of the evidence then, indicates that the Veteran does not have an immune disorder. See Guerrieri v. Brown, 4 Vet. App. 467 (1993). Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Thus, the Board denies the appeal for service connection for a claimed immune disorder. There is no reasonable doubt to be resolved in this case. 38 U.S.C. §5107; 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for an immune disorder is denied. REMAND A remand is necessary with regard to the Veteran's claim of a skin rash in order to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran's contention is that he developed a skin rash disability upon completion of training in his capacity as a Chemical Officer. He alleges that the rash developed during training at the Live Agent Training facility at Ft. McClellan. The Veteran was provided a VA examination in November 2010. The examiner concluded that it was "not at least as likely as not" that the Veteran's seborrhea/seborrheic dermatitis was caused by or causally related to exposure to nerve gas. Personnel records from the Army Chemical Biological and Nuclear school indicated that the Veteran was not exposed to a blister agent or nerve agent during his time at Fort McClellan; however they noted that a nerve agent was used in the area in 1987. The November 2010 VA examiner concluded that the Veteran's seborrheic dermatitis was of unknown cause and there was no known association with nerve gas. In its February 2011 remand, the Board noted that the November 2010 VA examiner's opinion was not based upon a thorough and accurate review of the claims file. A VA opinion was provided in October 2017 in conjunction with the Veteran's immune system disorder claim. That examiner primarily focused on the Veteran's claimed immune disability, and merely mentioned the Veteran's skin rash disorder. The examiner reiterated the previous finding that the Veteran's skin condition, seborrheic dermatitis, is a common problem of unknown etiology, but did not address whether it was related to service. In this case, the November 2010 VA examination is not adequate because it was not based on a thorough review of the claims file. An additional opinion is necessary to address the etiology of the Veteran's skin condition. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran's claims file to a qualified clinician to provide an opinion regarding the etiology of his skin condition. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. A new examination of the Veteran is only required if deemed necessary by the clinician. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's skin condition had its onset in or is otherwise related to active military service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. After the development requested has been completed, the examination report should be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, corrective procedures should be implemented. Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. Then, readjudicate the claim. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. The Veteran 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). ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs