Citation Nr: 1806183 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 12-00 127 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a gastrointestinal disability, to include as due to environmental hazards during Gulf War service. 2. Entitlement to service connection for a skin disability, to include as due to environmental hazards during Gulf War service. 3. Entitlement to service connection for a headache disability, to include as due to environmental hazards during Gulf War service. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Gonzalez, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1989 to July 1991, to include service in the Southwest Asia Theater of Operations. The Veteran was awarded a Combat Infantry Badge, among other decorations. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision from the Department of Veterans (VA) Regional Office (RO) in Denver, Colorado. In September 2014 and April 2017 the Board remanded the issues on appeal for additional development. The issues have now been returned to the Board for appellate review. FINDING OF FACT The Veteran's gastrointestinal disability, skin disability, and headache disability are not related to military service to include service in the Persian Gulf. CONCLUSIONS OF LAW 1. The criteria for service connection for a gastrointestinal disability have not been met. 38 U.S.C. §§ 101(33), 1110, 1117, 1154, 5110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310, 3.317 (2017). 2. The criteria for service connection for a skin disability have not been met. 38 U.S.C. §§ 101(33), 1110, 1117, 1154, 5110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310, 3.317 (2017). 3. The criteria for service connection for a headache disability have not been met. 38 U.S.C. §§ 101(33), 1110, 1117, 1154, 5110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310, 3.317 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS 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 a duty to assist argument). The Veteran asserts that a gastrointestinal disability (to include Crohn's disease), headache disability, and skin disability is due to exposure to environmental hazards during his Gulf War service. Generally, in order to prove 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). Service connection may be established on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability 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, 2021. 38 U.S.C. §§ 1117, 1118 (2012); 38 C.F.R. § 3.317(a)(1). A "Persian Gulf Veteran" is one who served in the Southwest Asia Theater of operations during the Persian Gulf War. Id. A "qualifying chronic disability" is defined as: (a) an undiagnosed illness, (b) a medically unexplained chronic multi-symptom illness (such as fibromyalgia, chronic fatigue syndrome, or a functional gastrointestinal disorder) 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 multi-symptom 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. Service treatment records are absent complaints for an in-service, injury, disease or illness for any stomach disability, skin disability, or headache disability. There is no separation examination of record. Crohn's Disease and Skin Disability During a June 2010 VA Gulf War guidelines examination the examiner noted that the Veteran received VA treatment for colitis, alcoholism, and recent bladder rupture. He reported that the Veteran last underwent and endoscopy in 2006 and was diagnosed with ulcerative colitis. The Veteran reported that he had abdominal symptoms of cramps, diarrhea, and intermittent abdominal pain onset about one year after service. The examiner explained that there was no evidence of an undiagnosed stomach condition and that his condition was ulcerative colitis, not Crohn's disease. He reported that he did not have access to the Veteran's colonoscopy records to confirm the diagnosis. On examination the Veteran reported that he has a constant skin rash on his chest and abdomen that had been present for a number of years with unclear onset. The examiner reported that there was no evidence of a truncal rash during the examination. The June 2011 examiner noted the Veteran's September 2010 colonoscopy with preoperative diagnosis of ulcerative colitis and post-operative diagnosis for active disease. She explained that the medical evidence suggested a possible diagnosis for an inflammatory bowel disease such as Crohn's disease and that clinical and endoscopic correlation was required. She noted an October 2010 treatment report with a diagnosis of Chron's colitis and referral for evaluation and management. The examiner diagnosed Crohn's disease and explained that this was the diagnosis most consistent with the medical evidence of record and the most recent biopsy findings on the most recent colonoscopy. She reported there was no evidence of irritable bowel syndrome (IBS). The examiner opined that none of the conditions on examination demonstrated an undiagnosed illness of chronic multi-symptom illness of unknown or partially explained etiology, but instead represented a disease with clear and specific etiology, namely Crohn's disease. With respect to his skin condition, the examiner reported that the Veteran had dilated capillaries on the trunk which the Veteran referred to as a rash. She reported that that there was no rash of suspicious skin or inguinal lymphadenopathy. She reported that there was no evidence of disease of process related to exposure in the Gulf War. The January 2015 VA examiner noted the Veteran's existing Crohn's disease diagnosis and reported that the disease was currently in remission. The examiner explained that specific testing was done to narrow the Veteran's inflammatory bowel disease diagnosis. He reported that antibodies that are specific to Crohn's disease were measured and the Veteran was diagnosed with Crohn's disease, not ulcerative colitis. He reported that this is a known condition and not part of an unexplained chronic multi-symptoms illness. He further reported that the Veteran had the onset of these symptoms in 2000, almost 10 years after separation from service. With respect to his skin condition, the Veteran reported that when he was about 33 years old he had sudden onset of numerous skin lesions over his trunk and proximal extremities. He reported the lesions resolved without treatment. The examiner reported that the rash was likely pityriasis rosea, a self-limited condition the exact cause of which is unknown. The Veteran reported that he developed lesions on his legs about the same time he was diagnosed with Crohn's disease. The examiner reported that the Veteran did not have skin lesions at the time of the examination, but based on the Veteran's description he reported that the lesions were likely erythema nodosum, a condition seen with Crohn's disease. In June 2017 VA obtained another medical opinion regarding the relationship of the Veteran's Crohn's disease to service. When asked to explain the reasoning behind his February 2015 opinion the examiner responded that Crohn's disease is a condition that primarily involves the gastrointestinal tract and is not a multi-symptom unexplained illness. He explained that the pathophysiology of Crohn's disease has been defined and is not a medically unexplained condition. The examiner opined that the Veteran's Crohn's disease is less likely than not related to service. He reported that the Veteran separated from military service in 1991 and was diagnosed with Crohn's disease in 2002, more than ten years after service. After review of the medical literature he explained that several environmental factors have been implicated in the increased incidence of inflammatory bowel disease, however, even the most consistently demonstrated environmental risk factors contribute only partially to disease pathogenesis. He explained that there is no medical research that shows that specific environmental exposures had a direct causal relationship with Crohn's disease. The June 2017 examiner opined that the Veteran's pityriasis rosea is a dermatological condition that manifests as numerous salmon colored plaques that appear primarily on the trunk and the condition does not have any other signs or symptoms; therefore, it is not an unexplained chronic multi-symptom illness, nor part of such illness, it is only a dermatological condition. The examiner reported that the lesions the Veteran developed when he was 33 years old resolved spontaneously over the course of a few weeks to months and the Veteran did not report that the condition lasted more than six months, or that it waxed and waned over a longer period of time. The examiner was unable to provide evidence about the extent or severity of the condition and it was not present at the time of examination. He explained that based on the Veteran's description of his lesions, the Veteran had erythema nodosum, a skin manifestation of an internal disease and that, therefore, the erythema is not part of an unexplained chronic multi-symptom illness, but a skin manifestation of Chron's disease. The examiner opined that it was less likely than not that the Veteran's pityriasis rosea and erythema nodosum were related to service. He reported that pityriasis rosea is a relatively common skin condition and that the etiology remains unclear although most likely related to viral causes, based on the medical literature. He further explained that erythema nodosum is a skin condition associated with internal conditions including streptococcal infections, respiratory infections, sarcoidosis and inflammatory bowel disease, and that there is no evidence in the medical research that has shown an environmental exposure causal relationship with either disability. There is no medical evidence in significant conflict with the opinions of the VA examiners. Thus, the most probative medical evidence is against the service connection claims. In the January 2012 Form 9 the Veteran asserted that his skin condition and stomach condition are related to his service in the Gulf War. He contends that he has had several different diagnoses for a skin condition by different doctors. He asserted the stomach condition was a problem in service and he has been diagnosed with IBS, Chron's disease, and ulcerative colitis, and thus the actual problem is unknown. A veteran is competent to describe symptoms that he is able to perceive through the use of his senses and to give evidence about what he has experienced. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, the Veteran is not shown to possess any medical expertise; thus, his opinion as to the etiology of a stomach or skin disability is not competent medical evidence. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his current disabilities requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). The evidence reflects the Veteran was diagnosed with ulcerative colitis, however, after additional testing he was diagnosed with Crohn's disease. A diagnosis of IBS is not shown. While the Veteran may have been told about inflammatory bowel disorders (which does not mean he has IBS), the medical evidence as described above reflects he was diagnosed with Chron's disease and not IBS. With respect to his skin disability, the June 2017 examiner explained that based on the Veteran's statements the skin lesions over his trunk and proximal extremities was pityriasis rosea, and the lesions on his lower extremities were erythema nodosum, a condition related to his Chron's disease. He explained why these skin disabilities are not related to environmental hazards but instead are respectively likely related to viral causes and the Veteran's Chron's disease. The Board finds the June 2017 examiner's medical opinion more probative than the Veteran's lay statements as the opinion was offered by a medical professional after examination of the Veteran and consideration of the history of the disabilities and medical literature, and as the opinion is supported by a clear rationale. In summary, service connection cannot be awarded for an undiagnosed illness or chronic multisymptom illness as the Veteran's complaints have been accounted for by diagnosed disabilities and none of those diagnosed disabilities qualifies as a medically unexplained chronic multisymptom illness. In addition, the diagnosed conditions are not shown until many years after service and the medical opinions indicate that none of the diagnosed conditions are related to the Veteran's service, to include his service in the Persian Gulf. Headache Disability During the June 2010 VA examination the examiner diagnosed the Veteran as having tension headaches. The Veteran reported having several headaches a month that start with ringing in the ear and built up to pressure and headache pain. The examiner reported the Veteran's headaches had been present for several years with unclear onset. At the June 2011 VA examination, when asked about symptoms related to chronic fatigue syndrome the Veteran responded he had trouble concentrating and difficulty with sleep. He reported that he had headaches about two to three times in the past year, and each flare of headaches lasted about two weeks and resolved on their own. The examiner reported that the Veteran demonstrated poor concentration and sleep disturbance and reported he has tension headaches, but his symptoms did not meet the criteria for chronic fatigue syndrome. At the January 2015 VA examination the Veteran reported that he did not have a painful head condition but instead reported he has episodes where he feels "foggy" and a decreased ability to concentrate and focus. He reported that the episodes would last for two to three days, the last episode occurring one year prior. The examiner noted that in April 2014 the Veteran was hospitalized after an assault and hit his head when he fell out of a hospital bed. He noted that an MRI taken at the time was normal except for signs consistent with the recent trauma. He reported the clinical evidence did not support a diagnosis for a headache condition. The June 2017 examiner reported that during the 2015 examination the Veteran did not report head pain associated with the episodes of fogginess and difficulty concentrating, nor other symptoms. The examiner opined that as the Veteran has not had associated symptoms with his episodes of fogginess and decreased ability to concentrate, it is less likely than not that these complaints are part of an unexplained chronic multisymptom illness. The examiner explained that the Veteran's tension headaches are commonly related to muscle tightness involving the muscles of the posterior cervical spine, have a clear etiology, and are not a part of an unexplained chronic multi-symptom illness. He further explained that the Veteran's symptoms of fogginess and decreased ability to focus and concentrate had their onset in 2010, almost 20 years after military service, and that it was less likely than not that these symptoms were related to his military service. The examiner reported that in the March 2010 VA examination report the Veteran asserted that he had headaches for a number of years. He opined that the Veteran's headaches have likely resolved and that as there is no clear history that relates when the headaches began. He opined that it is impossible to determine if they had their onset while the Veteran was in service without resorting to mere speculation. As the Veteran's headaches are explained by the diagnosis of tension headaches, service connection cannot be awarded under 38 C.F.R. § 3.317 (Compensation for certain disabilities occurring in Persian Gulf veterans) as that regulation is for undiagnosed illnesses and medically unexplained chronic multisymptom illnesses. To the extent the reports of fogginess and decreased ability to concentrate could be separate from the tension headaches, service connection cannot be awarded under 38 C.F.R. § 3.317 as these symptoms have not manifested to a degree of 10 percent or more and have not been objectively confirmed. Of note, at the January 2015 examination the Veteran reported episodes where he feels "foggy" and a decreased ability to concentrate and focus, which lasts for two to three days; the last episode occurring one year prior. The Board can find no provision in the Rating Schedule that would allow for a compensable rating for symptoms such as these occurring once per year. In addition, Section 3.317 requires objective indications of chronic disability to 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. 38 C.F.R. § 3.317(a)(3). The Veteran's reports of fogginess and difficulty concentrating have not been independently verified. As such, service connection is not warranted when considering 38 C.F.R. § 3.317. Service connection is also not warranted based on a theory of in-service incurrence. See 38 C.F.R. § 3.303. Again, there are no documented complaints of headaches, difficulty concentrating, or fogginess during service. The more recent evidence reflects that the Veteran has complained of headaches and head symptoms such as fogginess and difficulty concentrating. The Veteran has reported that his headaches come and go and have done so since service; however, at his June 2010 examination he reported the headaches had been present for several years with unclear onset. The Board does not equate several years with 19 years, which is the amount of time the Veteran had been out of service when examined in June 2010. Thus, his statements are inconsistent about when his headaches onset and are afforded low probative value. The Veteran was diagnosed with tension headaches in June 2010 and no medical provider has opined that the Veteran's headache disability began in or as a result of service. Indeed, the June 2017 examiner explained that tension headaches have a clear etiology and that the Veteran's symptoms of fogginess and decreased ability to focus and concentrate had their onset in 2010, almost 20 years after military service. He opined that it was less likely than not that these symptoms were related to his military service. The Board finds the June 2017 examiner's medical opinion more probative than the Veteran's inconsistent lay statements as the opinion was offered by a medical professional after examination of the Veteran and consideration of the history of the disabilities and medical literature, and as the opinion is supported by a clear rationale. In his VA Form 9, the Veteran reported that he had a head injury in service when he flipped a Bradley Fighting Vehicle in a tank trap and was treated by a medic. This is not documented in the service records. While the Veteran did not describe if his vehicle flipped during combat, it is noted that the Veteran has been awarded the Combat Infantryman Badge which is conclusive proof of participation in combat. For injuries alleged to have been incurred in combat, 38 U.S.C. § 1154(b) provides a relaxed evidentiary standard of proof to grant service connection as to the in-service event. Collette v. Brown, 82 F.3d 389 (1996). Under the statute, in the case of any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, condition or hardships of such service, even though there is no official record of such incurrence or aggravation. The Court of Appeals for the Federal Circuit (Federal Circuit) has held that the presumption found in section 1154(b) applies not only to the potential cause of a disability, but also to whether a disability itself was incurred while in service. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). The Federal Circuit explained that with the presumption, the Veteran did not have to attempt to establish that the event during service led to a disability following service but instead only had to show that the disability incurred in service was a chronic condition that persisted in the years following active duty. Id. at 999-1000. In this case, the evidence is clear that the disability has not persisted since the incident during service. There are no documented complaints of headaches during service or until almost two decades after service. When asked about the history of his headaches the Veteran originally stated that they had been present for several years, which the Board finds means less duration than 19 years, which is the time that had passed since separation from service and the Veteran relaying the history of the disability. The Veteran has also reported a frequency of headaches which the Board does not equate with a condition persisting in the years following service. For example, in June 2011 the Veteran reported having headaches two to three times per year. More recently he has reported having no headaches. As such, the evidence is clearly against a finding that a headache disability persisted since the incident during service. In summary, the preponderance of the evidence is against a finding that the Veteran's gastrointestinal disability, skin disability, or headache disability is related to service, to include exposure to environmental hazards during the Gulf War. Thus, the claims for service connection are denied. ORDER Service connection for a gastrointestinal disability is denied. Service connection for a skin disability is denied. Service connection for a headache disability is denied. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs