Citation Nr: 18139865 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 14-36 419 DATE: October 1, 2018 ORDER Service connection for a lumbar spine disability is granted. Service connection for a skin condition is granted. Service connection for an acquired psychiatric disorder, to include an adjustment disorder with mixed anxiety and depression, is granted. Service connection for a disability manifested by non-specific joint pain, to include as an undiagnosed illness resulting from service in Southwest Asia during the Persian Gulf War, is granted. REMANDED Entitlement to service connection for a left hip disability is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his lumbar spine disability is at least as likely as not related to an in-service injury. 2. Resolving reasonable doubt in the Veteran’s favor, his skin condition was at least as likely as not onset in service. 3. Resolving reasonable doubt in the Veteran’s favor, his acquired psychiatric disorder is at least as likely as not related to a service-connected disability. 4. The Veteran served in the Southwest Asia theater of operations during the Persian Gulf War; and, resolving reasonable doubt in the Veteran’s favor, his disability manifested by non-specific joint pain is at least as likely as not an undiagnosed illness. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a skin condition have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a disability manifested by non-specific joint pain, to include as an undiagnosed illness resulting from service in Southwest Asia during the Persian Gulf War, have 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 CONCLUSIONS The Veteran had active military service from June 1988 to June 1992. In April 2018, the Veteran appeared and provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disability which is aggravated by a service connected disability. In order to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of a service connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). In addition, service connection may be awarded on a presumptive basis, meaning without competent evidence of a nexus between the claimed illness and service, to a Persian Gulf veteran who (1) exhibits objective indications; (2) of a chronic disability such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) which became manifest either 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 December 31, 2021; and (4) such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. Gutierrez v. Principi, 19 Vet. App. 1, 7 (2004); 38 U.S.C. § 1117; 38 C.F.R. § 3.317; 76 Fed. Reg. 81834 -81836 (Dec. 29, 2011). Objective indications of a chronic disability 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). Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. 38 C.F.R. § 3.317 (a)(4). The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. Id. A qualifying chronic disability referred to in this section shall be considered service-connected for the purposes of all laws in the United States. 38 C.F.R. § 3.317 (a)(6) Signs or symptoms which may be manifestations of an undiagnosed illness include, but are not limited to, fatigue, signs or symptoms involving the skin, headaches, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. 38 C.F.R. § 3.317 (b). Lumbar Spine Disability The Veteran is seeking service connection for a lumbar spine disability that he asserts stemmed from an in-service injury he sustained when he fell while playing softball. The Veteran has current undisputed lumbar spine diagnoses, including degenerative disc disease (DDD) and degenerative joint disease (DJD). Thus, at issue here is whether a current lumbar spine disability is medically related to the in-service injury the Veteran described. Although the Veteran did not seek treatment in service for his lumbar spine after the softball injury occurred, he explained he feared disclosing the onset of back pain after the injury because he thought he would be released from active duty if it were x-rayed. The Veteran’s service treatment records (STRs) clearly document that the Veteran was injured playing softball in service and sought treatment in March 1989 for a wrist injury he incurred in that incident. Further, the Veteran’s mother submitted a written statement in April 2018, wherein she reported having picked him up from the Naval Hospital in April 1989 after he had surgery on his wrist from the softball injury. She stated that she noticed at that time that the Veteran was walking hunched over and the he told her that his back hurt when he tried to stand upright, and that it had been hurting since the softball incident. As lay persons, the Veteran and his mother are competent to report what they observe through their senses. See Layno v. Brown, 6 Vet. App. 465 (1994). Thus, although the STRs do not disclose the Veteran’s back injury, the Board finds that the Veteran’s accounts of his back pain beginning after the softball injury and the Veteran’s mother’s recollection that he stated this to her shortly after the injury are highly probative on the matter. Affording the Veteran the benefit of the doubt, the Board finds the in-service element of this claim has been met. Turning to the issue of a medical nexus, the Veteran was afforded a VA examination in June 2012, where the VA examiner found the Veteran’s current back condition was unrelated to his active service. The examiner, however, failed to consider the Veteran’s statements about the onset of his back pain after the softball injury, and based this opinion on the lack of any medical evidence in service showing that such an injury occurred. Because the examiner’s opinion did not consider the Veteran’s account of hurting his back in service, the Board finds that it has little, if any, probative value on the issue of a medical nexus. The Veteran has submitted multiple opinions from his private treatment providers regarding the issue of a medical nexus between the Veteran’s current lumbar spine condition and the in-service softball injury. All have opined that the Veteran’s current back symptomatology were caused by the reported in-service event. Specifically, for example, Dr. K.L., M.D. wrote in April 2011 that the Veteran appeared to have a posttraumatic deformity of his lumbar spine, with many features suggesting it was not a congenital problem. He further wrote that the Veteran had a clear history of injury to his back while performing heavy activities in service and from recreational softball. He opined that the Veteran’s lumbosacral problem was likely associated with active service. The Veteran also submitted a Disability Benefits Questionnaire completed by Dr. B.P., M.D. in July 2013, who stated the Veteran’s lumbar spine disability was likely sustained in military service. Of note, both Dr. B.P. and Dr. K.L. are orthopedic surgeons, and can be presumed to have the education and training commensurate with such positions, as they are experts in orthopedics. The Board finds the private treatment providers’ positive nexus opinions of record more probative than the negative VA examiner’s nexus opinion, as these providers considered both medical principles and the Veteran’s history in rendering their opinions. As stated, the VA examiner did not consider the Veteran’s personal account of the onset of his lumbar spine symptomatology, and his opinion has thereby been afforded less probative value. Affording the Veteran the benefit of the doubt, the Board finds the evidence supports a medical nexus between the reported in-service injury and current lumbar spine disability, and all elements of service connection for the Veteran’s lumbar spine disability have been met. Accordingly, service connection for a lumbar spine disability is granted. Skin Condition The Veteran is seeking service connection for a recurring skin rash, which he asserts began in service. In March 1990, the Veteran’s service treatment records show that he sought treatment for a rash on both forearms. At that time, the provider diagnosed scabies and directed the Veteran to apply a topical cream to the affected areas. Further, the Veteran’s service treatment records documented that, although the Veteran’s skin was normal at his May 1992 separation examination, the Veteran reported having had a pruritic skin rash on his forearms which lasted approximately six months. Since separating from service, the Veteran has sought treatment numerous times for a recurring skin rash appearing on various parts of his body. He was afforded a VA examination to determine the etiology of his rash in June 2012. The VA examiner noted that the Veteran had a diagnosis of dermatitis since 1995, but stated that the Veteran’s claimed condition was not related to the scabies which he had been diagnosed with in service. Post-service medical treatment notes show that the rash which the Veteran has experienced since separating from service has appeared all over his body, including his arms. A May 1995 post-service treatment record shows that the provider who examined the Veteran’s on that date rash ruled out scabies pursuant to further chemical testing. However, this note shows that the May 1995 provider initially suspected the rash could have been scabies after visually examining the Veteran. Although the STR from March 1990 stated that the in-service provider assessed scabies, there was no indication that scabies was diagnosed pursuant to any more than a visual assessment of the condition. Thus, it is entirely possible that the rash for which the Veteran has treated post-service was a recurrence of the rash which began on the Veteran’s forearms in service, as the treatment records indicate they had the same visual characteristics. Further, the Veteran testified before the Board in April 2018 that he first experienced his current skin problems in service and they have been constant and chronic since then. No matter what medication he has been given to treat it, he reported that the rash has always reappeared. Because the Veteran’s skin rash is a condition he has been able to observe through his senses, the Board finds his testimony about his rash symptoms and their onset to be competent, credible, and highly probative. See Layno, 6 Vet. App. at 469. The Board notes that, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of a disability, or symptoms of a disability, susceptible of lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, the Veteran has testified that he has observed the same symptomatic rash as having consistently recurred since service. Although a VA examiner opined that it was not related to the rash he experienced in service, that examiner relied upon an in-service diagnosis of scabies that may not have been made pursuant to chemical testing which could have confirmed scabies with more certainty than a visual examination. As such, the probative value of that opinion is questionable, and the Board finds that the evidence in this case is thus in relative equipoise regarding whether the rash that the Veteran experienced in service is the same rash he has continued to experience since separating from active service. Affording the Veteran the benefit of the doubt, the Board finds the evidence supports a nexus between the reported in-service rash and the Veteran’s current skin condition, and all elements of service connection for the Veteran’s skin condition have been met. Accordingly, service connection for a skin condition is granted. Acquired Psychiatric Disorder The Veteran asserts that his psychiatric condition is secondary to the chronic pain he has experienced from his service-connected conditions. The Veteran was afforded a VA psychiatric examination in June 2012. The VA examiner stated that the Veteran met the DSM criteria for a diagnosis of an adjustment disorder with mixed anxiety and depression. The examiner also stated that the Veteran’s current psychiatric condition was unrelated to the psychiatric complaints shown on his May 1992 separation examination, being that his current condition was related to his back and hip issues, whereas his in-service psychiatric symptomatology was related to marital problems. As discussed above, the Veteran is now service-connected for his lower back disability. Thus, although the June 2012 VA examiner stated the Veteran’s psychiatric disorder was unrelated to his in-service psychiatric issues, the examiner also stated that the current condition was associated with chronic pain stemming from a condition for which he is now service-connected. Thus, service connection for the Veteran’s acquired psychiatric disorder is warranted as being secondary to a service-connected disability. Accordingly, service connection for an acquired psychiatric disorder is granted. Undiagnosed Illness Manifested by Non-specific Joint Pains The Veteran is also seeking service connection for symptoms he attributed to Gulf War Syndrome. To that effect, the Veteran’s status as a Persian Gulf veteran has been conceded and is not in dispute, as his DD Form 214 reflects he received a Kuwait Liberation Medal, which was only awarded to Persian Gulf veterans. Further, the Veteran submitted a statement in support of this claim in March 2012, wherein he wrote that the specific symptoms he was claiming as due to a Gulf War Illness were joint symptoms, rashes, and depression. As discussed previously, the Veteran’s rash and depression symptoms have been formally diagnosed and granted service connection. Regarding the Veteran’s joint symptoms, an August 2016 VA examiner opined that the Veteran’s joint pains were at least as likely as not symptoms of an undiagnosed illness. In light of the above, the Veteran, a Persian Gulf Veteran, has exhibited symptoms of joint pain, a symptom specifically enumerated in 38 C.F.R. § 3.317(b), which manifested at a time not later than December 31, 2021, and cannot be attributed to any known clinical diagnosis. Further, the Veteran’s joint pain symptoms have lasted more than six months, and are, therefore, chronic. Thus, the provisions for service connection under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317(a) and (b) have been met for the Veteran’s undiagnosed illness manifested by non-specific joint pain; and service connection is granted. The Board notes that in granting service connection for this condition, a separate rating will not necessarily be assigned for all of the Veteran’s painful joints. The Veteran has already been granted service connection for a number of orthopedic joint impairments with specific diagnoses, which, by definition, cannot be considered undiagnosed illnesses. However, based on the April 2016 VA examination, it has been medically determined that the Veteran does have additional non-specific joint pains that are at least as likely as not considered to be an undiagnosed illness; and, thus, this claim is allowed. REASONS FOR REMAND Service Connection for a Left Hip Disability The Veteran has asserted that his left hip disability is secondary to his service-connected lumbar spine disability. The Veteran was afforded a VA hip examination in June 2012, wherein the VA examiner opined that his hip condition was not directly related to his active service. However, opinions were not rendered as to whether the Veteran’s left hip condition was either caused or aggravated by his now service connected back disability. As such, a medical opinion should be obtained. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to address the etiology of his left hip disability. The examiner should address the following questions: (a.) Is it at least as likely as not (50 percent or greater) that the Veteran’s left hip disability was caused by his service-connected lumbar spine disability? Why or why not? (b.) Is it at least as likely as not (50 percent or greater) that the Veteran’s left hip disability was aggravated (made worse) by his service-connected lumbar spine disability? Why or why not? If aggravation is found, the examiner should identify a baseline level of severity of the left hip disability by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the left hip disability. If such cannot be done, it should be explained why. The examiner should specifically consider the Veteran’s lay statements in support of his claim, to include his April 2018 Board hearing testimony. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Davidoski, Associate Counsel