Citation Nr: 1806142 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 05-29 662 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for hair loss. 2. Entitlement to service connection for a skin condition. 3. Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Kathy A. Liebermann, Esquire ATTORNEY FOR THE BOARD B. Gabay, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1990 to July 1990, from September 1990 to April 1991, and from February 2003 to October 2003. He also had periods of service with the Army National Guard of the Commonwealth of Puerto Rico. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. These matters were previously before the Board in February 2008. The Veteran appealed the claim to the United States Court of Appeals for Veterans Claims (Court) and a Joint Motion for Remand (JMR) was issued vacating and remanding the Board's February 2008 decision with regard to the above stated issues. Thereafter, the Board remanded these matters in July 2010 and February 2017. FINDINGS OF FACT 1. The Veteran's hair loss is not etiologically related to service. 2. Resolving all reasonable doubt in the Veteran's favor, the Veteran skin condition is etiologically related to service. 3. The Veteran's hepatitis C is not etiologically related to service. CONCLUSION OF LAW 1. The criteria for service connection for hair loss have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2017). 2. The criteria for service connection for skin condition have been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 3. The criteria for service connection for hepatitis C have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the Veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. 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, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See, e.g., Hickson v. West, 12 Vet. App. 247 (1999); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). When all of 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A. Hair Loss The Veteran asserts his currently diagnosed hair loss is etiologically related to service. The Veteran's June 1989 enlistment examination showed abnormal symptoms associated with head, face, neck, scalp. The Veteran was noted to have male pattern alopecia, but the Veteran did not complain of abnormal symptoms. A November 1994 VA treatment record notes treatment for loss of hair. In a separate November 1994 VA treatment record, the Veteran complained of loss of scalp hair and was diagnosed with genetic alopecia. The Veteran underwent a VA examination in October 2011 during which he reported first noticing his hair loss in 1991 during a shower. The examiner indicated that the Veteran had hair loss in the parietal area, but the examiner did not provide an opinion as to whether the Veteran's hair loss was caused or aggravated by service. He was also not given a separate diagnosis for his hair loss. The Veteran underwent a VA examination in May 2017 during which he reported that after returning from Kuwait, he started to notice that he was losing his hair on top of his head. However, the examiner concluded that the Veteran's hair loss was less likely as not caused or aggravated by his periods of active duty service. The examiner noted that the Veteran's hair loss was diagnosed in June 1989, prior to active military service, and that service treatment records did not show complaints during service concerning hair loss that would suggest aggravation of his condition. The examiner further opined that the Veteran exhibits a typical pattern of androgenetic alopecia to suggest that it was not aggravated beyond natural progression during service. Further, the examiner stated that the Veteran's androgenetic alopecia is a disease with a clear and specific etiology and diagnosis, and there is no evidence in medical literature of a direct etiologic relationship between androgenetic alopecia and previous exposure to environmental hazards Veteran might have been exposed during his deployment in Southwest Asia. More likely, the examiner opined, the Veteran's androgenetic alopecia is related to hormonal and genetic factors. As the medical evidence outlined above shows, the Veteran's hair loss is due to male pattern baldness, also known as androgenic/androgenetic alopecia. There is no other etiology suggested in the medical evidence. The Board finds that the opinion and diagnosis of androgenetic alopecia rendered by the May 2017 VA examiner constitute the most probative evidence of record as to the nature and etiology of the Veteran's hair loss. As stated above, the May 2017 examiner found the Veteran's androgenetic alopecia to be a genetic issue, and noted that there is no medical evidence suggesting that the condition could arise from environmental exposure to conditions in Southwest Asia. This medical evidence ultimately outweighs the Veteran's contention that his hair loss is due to his service. See Layno v. Brown, 6 Vet. App 465, 470 (1994) (cautioning that lay testimony that the Veteran suffered a particular illness (bronchial asthma) was not competent evidence because matter required medical expertise); Jandreau, 492 F.3d 1372 (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). The Board finds that the Veteran's claimed hair loss, diagnosed as male pattern hair loss/androgenic alopecia, is shown by the weight of medical evidence to not be etiologically related to the Veteran's service. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule is not for application and the claim of entitlement to service connection for hair loss, diagnosed as androgenic alopecia, must be denied. 38 U.S.C. § 5107. B. Skin Condition In addition to the aforementioned elements of direct service connection, "a Persian Gulf Veteran with a qualifying chronic disability," that manifests to a degree of 10 percent or more before December 31, 2016, may be entitled to compensation. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1) (2017). As the Veteran's DD-214 shows that he served in the Southwest Asia theater of operations from October 1990 to April 1991, these provisions apply in this matter. There are three avenues for finding that a chronic disability may qualify for presumptive service connection pursuant to 38 U.S.C. § 1117. Qualifying chronic disabilities include those that result from (1) "[a]n undiagnosed illness," (2) "[a] medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders, to include irritable bowel syndrome) that is defined by a cluster of signs or symptoms," or (3) "[a]ny diagnosed illness that the Secretary determines in regulations . . . warrants a presumption of service connection." 38 U.S.C. § 1117(a)(2)(A), (B), (C); 38 C.F.R. § 3.317(a)(2)(i)(B). VA has defined a medically unexplained chronic multisymptom illness as "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." 38 C.F.R. § 3.317(a)(2)(ii). Along with the three examples of a medically unexplained chronic multisymptom illness provided by § 1117(a)(2)(B), Congress has provided a list of signs or symptoms that may be a manifestation of a medically unexplained chronic multisymptom illness that includes skin symptoms, headaches, muscle pain, joint pain, neurologic symptoms, neuropsychological symptoms, respiratory symptoms, sleep disturbances, gastrointestinal symptoms, cardiovascular symptoms, abnormal weight loss, and menstrual disorders. See 38 U.S.C. § 1117(g); 38 C.F.R. § 3.317(b). The provisions of 38 C.F.R. § 3.317(a)(ii) provide that, in order to be considered a qualifying chronic disability, a disability "[b]y history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis." The definition of "medically unexplained chronic multisymptom illness" includes a "diagnosed illness without conclusive pathophysiology or etiology." Here, the Veteran asserts that he has a currently-diagnosed skin disorder that was incurred in service as a result of environmental exposures during his Gulf War service. A January 1992 service medical certificate notes that the Veteran complained of rash and itching on the left inguinal region for two weeks. In a November 1994 VA dermatological consultation, the Veteran complained of body itching. He was diagnosed with tinea versicolor. He was again assessed with tinea versicolor in a February 1995 VA dermatology consultation. The Veteran underwent a VA examination in March 2005, during which he complained of a mild rash on internal thighs that was also present during his service in Kuwait and general itching over his whole body. His symptoms were described as "intermittent." The Veteran reported that his symptoms had worsened since his time in Kuwait. The examiner noted that the Veteran did not have a skin condition prior to service. Since service, however, the Veteran reported having a rash in the bilateral internal thighs, general itching, and occasional reddish skin. The Veteran reported that his general itching was worse at night. However, the Veteran was not diagnosed with any particular skin condition. The Veteran underwent a VA examination in October 2011 in which he was diagnosed with hyperpigmented skin rash over his forearms, neck, and chest. The Veteran asserted his skin symptoms began in 1990 and he complained of skin irritation symptoms in the inguinal area, arms, and gluteus. The Veteran also reported symptoms of redness and itching that occurred every two weeks over different parts of the body. The examiner did not provide opinion regarding the etiology of the Veteran's hyperpigmented skin rash. The Veteran underwent a private medical examination in December 2014 in which he complained of dry skin, itching, scales, and pruritus in the neck, high back, shoulders, and arms. The examiner diagnosed him with atopic dermatitis. However, the examiner did not provide a rationale for his opinions, and there is no indication he reviewed the Veteran's claims file. The Veteran underwent a final VA examination in May 2017 in which he again reported having a rash on his chest and neck since he returned from Kuwait. The examiner diagnosed the Veteran with tinea cruris of the bilateral inguinal area and bilateral tinea pedis with dry and scaly skin. The examiner noted no physical evidence of active tinea versicolor or tinea infection on axillae. However, the examiner concluded that the Veteran's skin rash was less likely than not related to service. The examiner noted that no service treatment record includes a diagnosis of or treatment for tinea pedis, tinea cruris, or tinea versicolor, and that the Veteran was not diagnosed with a skin condition until January 1992, which is not a period of active duty service. Additionally, the examiner noted that the Veteran was not diagnosed with tinea cruris until 2006, and that there was no evidence of record to suggest that any existing skin rash was aggravated by active service, as there were no complaints noted at any time during service. The examiner did note a diagnosis of tinea versicolor in February 1995, but opined that that diagnosis ceased. Finally, the examiner noted diagnoses of tinea pedis and poikiloderma of civatte in 2010 and 2011, respectively, several years after service. Again, the examiner found no evidence to suggest these diagnoses had etiology in service. The examiner further opined that none of the Veteran's skin diagnoses are known to be caused by hazardous environmental exposures that the Veteran might have been exposed during his deployment in Southwest Asia. Despite the foregoing negative opinions, after weighing the probative value of the competent evidence, and after affording the Veteran the benefit of the doubt, the Board finds that the Veteran's current skin condition is etiologically related to his military service. While the May 2017 VA examiner's medical opinion is competent and probative, it is outweighed by the competent and credible evidence showing an onset of a chronic skin disorder in service, as well as the Veteran's competent lay statements of continuity ever since. See Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). In this regard, the competent and credible evidence shows that the Veteran sought treatment for a rash and itching of unknown etiology in January 1992, less than one year following his service in Southwest Asia, and that his symptoms have recurred since service. See Layno, 6 Vet. App. at 469. While symptoms, not treatment, are the essence of any evidence of continuity of symptomatology, the medical evidence also supports the Veteran's reports that various skin symptoms have been present since at least 1992. See Wilson, 2 Vet. App. at 19. Additionally, signs or symptoms involving skin qualify for presumptive service connection for undiagnosed illnesses resulting from service in the Persian Gulf. See 38 C.F.R. § 3.317(b)(2). Thus, after affording him the benefit of the doubt, the Board finds the Veteran's skin condition is etiologically related to his military service. Accordingly, after applying the benefit-of-the-doubt rule, the evidence is at least in equipoise in showing that service connection for a skin condition is warranted. Thus, the claim is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. C. Hepatitis C The Veteran claims that he is currently diagnosed with hepatitis C, and that his diagnosis is etiologically related to service. Though the Veteran does not specifically allege how his diagnosis relates to service, nor do service treatment records show complaints or treatment for hepatitis C, the Board does not dispute his contention. A February 1997 VA examination report reflects a history of hepatitis C. Additional VA and private clinical records from 1997 through 2000 also reflect diagnoses of hepatitis C. The Veteran's private physician completed a disability benefits questionnaire in March 2017. The physician noted a current diagnosis of hepatitis C that stems from 1994, after the Veteran returned from Kuwait and was found to have elevated liver enzymes. The Veteran was noted to have intermittent fatigue, intermittent malaise, and intermittent arthralgia, but no cirrhosis of the liver. The examiner did not opine on the etiology of the Veteran's condition, nor did he indicate if the examination was performed in the presence of the Veteran or with consideration of the Veteran's claims file. The Veteran underwent a VA examination in May 2017 in which the examiner noted a 1994 diagnosis of hepatitis C. The Veteran reported risk factors of using a toothbrush and razor, but there is no indication as to whether he shared these items with others. Additionally, the examiner found the Veteran to exhibit no active symptoms of the condition. The examiner concluded that the condition was less likely than not incurred in or caused by active service. The examiner opined that the Veteran was diagnosed with the condition in 1994 during a period when he was not on active duty. Additionally, the examiner concluded that nothing in the record suggests that the condition was aggravated by active service, as the Veteran was treated with harvoni with an excellent response. The Board notes that the Veteran is currently diagnosed with hepatitis C, as detailed above. Therefore, the Veteran has a current disability as required by 38 C.F.R. § 3.303. However, based on the evidence of record, the Veteran's current disability, which was diagnosed in 1994, clearly and unequivocally existed prior to his final period of ACDUTRA, which was in 2003, and there is no indication that the Veteran's hepatitis was worsened by his final period of ACDUTRA. To that end, there is no evidence of record that the Veteran's hepatitis C diagnosis is an active disorder. While the March 2017 physician lists the Veteran's general symptoms of fatigue, malaise, and arthralgia, the May 2017 VA examiner found that the Veteran has no active symptoms associated with hepatitis C. There is simply no evidence to demonstrate when or how the Veteran incurred hepatitis C or to even suggest an etiological relation to service. Given the lack of evidence demonstrating the incurrence of hepatitis C during service, the preponderance of the evidence is against the claim, and the appeal is denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule. 38 U.S.C. § 5107(b). Because, however, there is not an approximate balance of evidence, that rule is not applicable in this case. ORDER 1. Service connection for hair loss is denied. 2. Service connection for a skin condition is granted. 3. Service connection for hepatitis C is denied. ____________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs