Citation Nr: 18142630 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 16-11 413 DATE: October 16, 2018 ORDER Entitlement to service connection for a skin disability, to include rashes on the neck and arms, is granted. REMANDED Entitlement to chronic fatigue syndrome (CFS), to include secondary to posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for urinary tract condition is remanded. Entitlement to service connection for sexual dysfunction and female problems, to include secondary to PTSD is remanded. Entitlement to service connection for right hand numbness is remanded. Entitlement to service connection for loss of memory/concentration problems, to include as secondary to PTSD and CFS is remanded. Entitlement to service connection for sleep disturbances, to include as secondary to PTSD and CFS is remanded. REFERRED The issues of fibromyalgia and chronic pain syndrome (CPS) were raised in a May 2016 statement and are referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDING OF FACT The evidence reflects that the Veteran’s skin disability had its onset in service. CONCLUSION OF LAW With reasonable doubt in favor of the Veteran, the criteria for service connection for a skin disability are met. 38 U.S.C. §§ 1110, 1154; 38 C.F.R. § 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1991 to June 1991, including service in Southwest Asia. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In its September 2013 rating decision, the RO denied service connection for rashes on the neck and arms, and problems swallowing food, because the record did not reflect current diagnoses. However, the Board notes that the Veteran has been diagnosed with eczema, pruritus, furunculosis, and GERD. Furthermore, the Veteran did not file a claim to receive benefits only for a particular diagnosis, but for the affliction (symptoms) associated with any disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). Pursuant to the holding in Clemons, the Board will consider the Veteran’s original claims as encompassing claims for a skin disability and GERD. The September 2013 rating decision also denied service connection for heart palpitations, which the RO awarded in February 2016. This is a complete grant of the benefit sought with respect to the issue of service connection for a heart condition and, as such, that issue is no longer on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of “downstream” issues such as the compensation level assigned for the disability or the effective date of service connection). 1. Entitlement to a skin disability, to include rash on the neck and arms Service connection will be granted if the evidence demonstrates that current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In relevant part, 38 U.S.C. § 1154(a) (2012) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). “[L]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”). In this case, the Veteran’s service treatment records (STRs) do not reflect any complaints, treatments, or diagnosis of a skin disability. A September 2011 VA treatment record notes occasional itchy skin. A November 2012 VA examination report reflects diagnosis of eczema/dermatitis. The Veteran reported isolated pruritic vesicles on the arms, behind the ears, and on the chest that began when she was in Southwest Asia in 1991. She stated that she self-treated with over the counter hydrocortisone cream. The physical examination revealed no dermatitis and “a tiny isolated papule in the middle of the chest,” as well as “a small cluster of papules on the left elbow and left wrist that were pruritic per Veteran’s report.” The examiner opined that the Veteran’s skin disability was less likely than not related to an exposure event during her service in Southwest Asia because there was no evidence of the Veteran complaining of or being treated for a skin rash during her military service. Instead, the first mention of itchy skin rash was in 2007. In addition, the examiner stated that there was no medical literature to support that any exposures in Southwest Asia increased the risk of developing or causing the development of eczema. In a January 2013 statement, the Veteran reported that she started to experience rashes on her hands, arms, and neck after receiving the Anthrax vaccine. Likewise, the Veteran’s ex-husband reported that after she returned from active duty he witnessed itchy breakouts that she would scratch for hours, and described her skin as extremely dry. VA treatment records in September 214 reflect active problems of pruritus and furunculosis; and in September 2016 the Veteran had pigmented lesions on the back of her left hand. Based on the evidence of record, the Board finds that service connection for a skin disability is warranted. As an initial matter, the Veteran has a current disability of eczema/dermatitis and therefore meets the first prong for service connection. In addition, while STRs are silent as to any skin disability, the Board finds the Veteran competent to state that she first experienced skin problems during service, and that she is credible in her statements as explained below. Therefore, the Veteran meets the second prong of service connection. While the November 2012 VA examiner addressed the Veteran’s contentions, she gave the statements less weight because the Veteran did not report any rashes during service. The examiner also noted that there was only “a tiny isolated papule in the middle of the chest,” and “a small cluster of papules on the left elbow and left wrist that were pruritic per Veteran’s report.” The Board finds that the November 2012 VA examiner’s opinion is of no probative value as the VA examiner based her opinion in part on the lack of documentation in the service records. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”). The Board finds the Veteran’s statements concerning her symptoms during and after service that were later diagnosed as eczema/dermatitis to be competent and credible. The Veteran’s statements regarding her skin disability and its onset have remained consistent throughout the pendency his appeal. Specifically, the Veteran reported consistent symptoms of rashes on her neck, arms, and hands; and VA treatment records reflect active problems of pruritus and furunculosis, lesions on the back of the Veteran’s hands, and occasional itchy skin. These statements are also consistent with the circumstances of her service, which included being present during the Persian Gulf war ground attack and coming under hostile enemy fire including scud missiles. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). These things would make it less likely that she would have the time or ability to report skin problems. For the foregoing reasons, the evidence reflects that the Veteran’s skin disability had its onset in service. Entitlement to service connection for a skin disability is therefore warranted. See 38 C.F.R. § 3.303(a) (“service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces”); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (“[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself”). REASONS FOR REMAND 1. Entitlement to chronic fatigue syndrome (CFS), loss of memory/concentration problems, and sleep disturbances, to include secondary to PTSD is remanded. The Veteran contends that she has CFS, memory loss/concentration problems, and an undiagnosed sleep disorder secondary to her PTSD. Specifically, in December 2014, she submitted excerpts and titles to articles addressing the link between CFS, sleep disorder, and PTSD. STRs in May 1991 reflect trouble sleeping for approximately three weeks. A November 2012 VA examination report reflects no diagnosis for CFS. An October 2013 polysomnogram revealed no sleep apnea and the Veteran was diagnosed with insomnia. In July 2014, the Veteran stated that the causes of her nighttime awakenings were constant chronic shoulder and back pain, feeling on guard, needing to use bathroom three times per night, occasional nightmares, feeling startled by noises, worry, and intrusive thoughts regarding past traumatic experiences. She attributed her sleep disturbance to PTSD and pain. The Board notes that there is no VA opinion discussing whether the Veteran’s sleep disturbances, fatigue, and memory problems are distinguishable disabilities or symptoms of her PTSD. In addition, there is no VA opinion addressing the articles the Veteran submitted in December 2014. As such, a new VA examination by an appropriate physician is required to address the Veteran’s contentions. See also Barr v. Nicholson, 21 Vet. App. 30 (2007) (holding that once VA undertakes the effort to provide an examination or obtain medical opinion, it must ensure that one is provided or obtained that is adequate for the determination being made). 2. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. The Veteran alleged that she had trouble swallowing foods, which started during service. VA treatment records in September 2016 reflect diagnoses of GERD and intestinal gas. Given the Veteran’s service in Southwest Asia, her statements that she had trouble swallowing foods during service, her current diagnoses of GERD and intestinal gas, and the fact that the Veteran has not been provided with a VA examination, the Board finds that a VA examination to address the nature and etiology of the Veteran’s gastrointestinal problems is warranted. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). 3. Entitlement to service connection for urinary tract condition is remanded. The Veteran alleges that she has a urinary tract condition that is related to service. Specifically, she contends that she developed problems while deployed because of the lack of proper bathing equipment and facilities. STRs in March 1991 document vaginal itching for two days and a diagnosis of vaginal yeast infection. A November 2012 VA examination report reflects no diagnosis for a bladder or urethra condition. The Veteran reported having recurrent urinary tract infections (UTI) starting in 1991, but she believed that the condition had now resolved because she had not had a UTI in over eight years. VA treatment records in September 2013 reflect occasional urinary stress incontinence, and the VA active problems list in September 2014 document a diagnosis of candidiasis (yeast infection). The Board notes that there is no VA opinion discussing whether the Veteran’s current candidiasis is related to the Veteran’s in-service vaginal yeast infection and her recurrent UTIs since 1991. As such, a new VA examination by an appropriate physician is required to address the Veteran’s contentions. See also Barr, 21 Vet. App. at 30. 4. Entitlement to service connection for sexual dysfunction and female problems, to include secondary to PTSD is remanded. The Veteran contends that she experiences sexual dysfunction, to include secondary to service-connected PTSD. A November 2012 VA examination report reflects no gynecological condition. The examiner noted that the Veteran was perimenopausal and still menstruating. She had left sided abdominal/pelvic pain during her menstrual cycles, which she claimed as “sexual dysfunction, loss of a reproductive organ.” She had never had surgery and all reproductive organs were intact. The symptoms related to her gynecological condition were intermittent pain, severe pain, and irregular menstruation. In a January 2013 letter, the Veteran’s ex-husband stated that when the Veteran returned from active service, her menstrual cycle became more painful and uncomfortable. She never had cramps before but she started to experience them after service. VA treatment records in September 2013 reflect pelvic discomfort and records in April 2017 indicate that the Veteran had uterine fibroids. In addition, in December 2014, the Veteran submitted excerpts to articles addressing the link between PTSD and sexual dysfunction. The Board notes that there is no VA opinion discussing the Veteran’s current diagnosis of uterine fibrosis, and the December 2014 articles linking sexual dysfunction to PTSD. As such, a new VA examination by an appropriate physician is required to address the Veteran’s contentions. See also Barr, 21 Vet. App. at 30. 5. Entitlement to service connection for right hand numbness is remanded. The Veteran contends that she has right hand numbness that started after she received Anthrax immunization during service. STRs in May 1991 reflect that the Veteran was given an Anthrax vaccine and that her hand was frequently swollen. A November 2012 VA examination report reflects no diagnosis for hand numbness. The Veteran claimed that the right hand numbness began in 1991 and occurred when she lay on her right side; she then had to shake out her hand to relieve the numbness. The examiner did not perform an electromyography (EMG) study. He opined that it was less likely than not that the Veteran’s right hand numbness was related to service because there was no evidence of chronic peripheral nerve condition or neuropathy. He found that the Veteran had subjective complaints of intermittent numbness of the right hand, which seemed to be purely positional. She reported that if she lied on her right side sometimes her hand would go numb, and that she merely had to relieve the pressure and shake out her hand to relieve the numbness. In a January 2013 letter, the Veteran contended that she continued to experience right hand numbness that started in Saudi Arabia after she received the Anthrax vaccine. The Board finds the November 2012 VA examination inadequate because he did not address the Veteran’s contention that her right hand numbness is due to her in-service vaccination against Anthrax. In addition, the Veteran has consistently alleged that she experiences right hand numbness, but she has not been afforded an EMG. As such, a new VA examination by an appropriate physician is required to address the Veteran’s contentions and perform all necessary tests and studies to determine whether the Veteran has a peripheral nerve condition or neuropathy. See also Barr, 21 Vet. App. at 30. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate physician to determine the nature and etiology of the Veteran’s CFS, sleep disorder, and memory/concentration problems, to include as due to her service-connected PTSD. The claims file, including a copy of this Remand, must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. The examiner should opine as to the following: (a.) Whether the Veteran’s symptoms of fatigue, sleep disorder, and memory/concentration problems are symptoms of the Veteran’s service-connected PTSD or separate disabilities. (b.) If they are separate disabilities, the examiner should opine whether they are at least as likely as not related to an in-service injury, event, or disease, to include exposures while serving in Southwest Asia. If any symptoms associated with the Veteran’s complaints of fatigue, sleep disorder, and memory/concentration problems are determined to not be associated with a known clinical diagnosis, the examiner should indicate whether they are due to an undiagnosed illness or medically unexplained chronic multisymptom illness as indicated in the applicable disability benefits questionnaire. (c.) If the symptoms are not shown to be due to any incident in service and are separate disabilities, an opinion should be rendered as to whether the Veteran’s symptoms are either (i) caused or (ii) aggravated by the Veteran’s service-connected PTSD. The examiner should also consider and discuss all lay assertions, to include the Veteran’s assertions as to the nature, onset, and continuity of symptoms. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any gastrointestinal condition, to include GERD. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, to include exposures while serving in Southwest Asia. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any urinary tract condition, to include vaginal yeast infection. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, to include in-service vaginal yeast infection or exposures while serving in Southwest Asia. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any female sexual dysfunction. The examiner should provide an opinion: (a.) As to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset during service or is otherwise related to service, to include in-service vaginal yeast infection or exposures while serving in Southwest Asia. If any symptoms associated with the Veteran’s complaints of right hand numbness are determined to not be associated with a known clinical diagnosis, the examiner should indicate whether they are due to an undiagnosed illness or medically unexplained chronic multisymptom illness as indicated in the applicable disability benefits questionnaire. (b.) If it is not shown to be due to any incident in service, an opinion should be rendered as to whether the Veteran’s sexual dysfunction is either (i) caused or (ii) aggravated by service-connected PTSD. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right hand numbness. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, to include exposures while serving in Southwest Asia and Anthrax vaccine. If any symptoms associated with the Veteran’s complaints of right hand numbness are determined to not be associated with a known clinical diagnosis, the examiner should indicate whether they are due to an undiagnosed illness or medically unexplained chronic multisymptom illness as indicated in the applicable disability benefits questionnaire. The examiner should conduct all necessary tests and studies, to include an EMG.   In addressing the above, the examiner must consider and discuss all pertinent medical and lay evidence, to include assertions as to the nature, onset and continuity of symptoms. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Leifert, Associate Counsel