Citation Nr: 18146840 Decision Date: 11/01/18 Archive Date: 11/01/18 DOCKET NO. 16-09 577 DATE: November 1, 2018 ORDER New and material evidence having been received, the application to reopen a previously denied claim of entitlement to service connection for a headache disorder, characterized as tension headaches (also claimed as migraines) is granted and the claim is reopened. Service connection for a headache disorder, characterized as tension headaches (also claimed as migraines), is granted. Service connection for a skin disorder, characterized as seborrheic dermatitis of the scalp with history of multiple location hives and pityriasis, to include as due to service in Southwest Asia, is denied. REMANDED Entitlement to service connection for an undiagnosed illness or a medically unexplained chronic multisymptom illness (MUCMI) pursuant to 38 U.S.C. § 1117, to include muscle and joint pain and a fatigue disorder, is remanded. FINDINGS OF FACT 1. In a July 2005 rating decision, the claim of entitlement to service connection for a headache disorder was denied on the ground that the new evidence submitted by the Veteran failed to show a nexus between the Veteran’s headache disorder and his active duty service. 2. The evidence added to the record since the July 2005 rating decision relates to an unestablished fact that is necessary to substantiate the claim of service connection for a headache disorder. 3. Resolving reasonable doubt in the Veteran’s favor, it is at least as likely as not that the Veteran’s headache disorder is related to active duty service. 4. The Veteran’s skin disorder was not caused by or related to active duty service, and is not a qualifying chronic disability under 38 C.F.R. § 3.317. CONCLUSIONS OF LAW 1. The July 2005 rating decision that denied the Veteran’s claim of entitlement to service connection for a headache disorder is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Because the evidence received after the July 2005 rating decision is new and material, the requirements to reopen the Veteran’s claim of entitlement to service connection for a headache disorder have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.102, 3.156. 3. The criteria for entitlement to service connection for a headache disorder, characterized as tension headaches (also claimed as migraines), have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. The criteria for entitlement to service connection for a skin disorder, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1983 to October 1987 and December 1987 to July 1993. New and Material Evidence 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a headache disorder, characterized as tension headaches (also claimed as migraines) In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999); Manio v. Derwinski, 1 Vet. App. 140 (1991). Under the relevant regulations, “new” evidence is defined as evidence not previously submitted to agency decision-makers. 38 C.F.R. § 3.156(a). “Material” evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. If it finds that the submitted evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low, and consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. Rather, consideration should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Moreover, when determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In this case, the Veteran is claiming entitlement to service connection for a headache disorder. The Veteran’s claim of entitlement to service connection for a headache disorder was denied on the merits by the RO in a September 1998 rating decision. The RO found that denial was proper because (i) the Veteran’s headache disorder was not noted in service, (ii) tensions headaches, in and of themselves, were not recognized as a condition subject to service connection, and (iii) to the extent that the Veteran sought service connection for headaches as a manifestation of an undiagnosed illness, such theory was inapplicable due to the Veteran’s diagnosis of tension headaches. The Veteran’s claim asserting entitlement to service connection for a headache disorder was most recently by a rating decision in July 2005. There, the RO denied reopening of the Veteran’s claim because he had not submitted new and material evidence. Specifically, the RO found that although the evidence submitted by the Veteran since the prior denial of his claim was new, such evidence was not material because it did not establish a link between his service and his headache disorder. The Veteran did not appeal the July 2005 rating decision, nor did he submit any new and material evidence within a year of receiving it. Thus, the July 2005 rating decision represents the last final denial of the Veteran’s claim seeking service connection for a headache disorder. After a review of the evidence submitted since the July 2005 rating decision became final, the Board determines that the claim should be reopened. The evidence now includes new medical evidence, including treatment records from November 2014, April 2015, and September 2015, a July 2012 statement from the Veteran’s wife, and a July 2012 statement from a physician, which raise the possibility that the Veteran’s headache disorder may be related to active duty service. Not only is this evidence “new” because it was not of record prior to the last final denial of the claim, it is also “material” because it relates to an unestablished fact necessary to support the claim. Specifically, this evidence shows that there may be a continuity of symptoms linking the Veteran’s headache disorder to service or a nexus between the Veteran’s headache disorder and his active duty service. Therefore, the claim should be reopened on this basis. Shade v. Shinseki, 24 Vet. App. 110, 118-21 (2010); see also 38 C.F.R. § 3.156(a). Service Connection 2. Entitlement to service connection for a headache disorder, characterized as tension headaches (also claimed as migraines) The Veteran is claiming entitlement to service connection for a headache disorder. Specifically, the Veteran asserts that his headache disorder began in service and, therefore, is related to service. Under the relevant laws and regulations, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, to prevail on a service connection claim, the evidence must show: (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, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Based on the evidence of record, the Board determines that service connection is warranted for the Veteran’s headache disorder. Here, the post-service evidence, including private treatment records from August 1996, August 1997, June 2000, and July 2003, VA treatment records from August 2004, November 2014, April 2015, and correspondence from the Veteran’s private physician in September 2003 regarding the Veteran’s headache disorder, in conjunction with the credible statements of the Veteran, July 2012 statement of his wife, and July 2012 statement of his private physician, reflect that he had headaches almost immediately after service and have persisted since service. Indeed, the September 2003 correspondence from the Veteran’s treating physician indicates that the Veteran began receiving treatment for his chronic headache disorder in March 1994, only eight months after the Veteran’s separation from service. The clinical evidence and competent and credible July 2012 statements of the Veteran’s wife and private physician further demonstrate that the Veteran’s headaches have persisted from eight months after his separation from service to the present. Thus, the continuous symptoms experienced by the Veteran from eight months after his separation from service to the present support a direct nexus. Therefore, resolving all doubt in the Veteran’s favor, the evidence is at least in equipoise that the Veteran’s headaches are etiologically related to service. Accordingly, service connection for the Veteran’s headache disorder is warranted. 3. Entitlement to service connection for a skin disorder, characterized as seborrheic dermatitis of the scalp with history of multiple location hives and pityriasis, to include as due to service in Southwest Asia The Veteran is claiming entitlement to service connection for a skin disorder, to include as due to service in Southwest Asia. As an initial matter service connection is not warranted on a presumptive basis due to the Veteran’s service in the Southwest Asia theater of operations. Under 38 C.F.R. § 3.317, service connection may be warranted on a presumptive basis for veterans with service in the Southwest Asia theater of operations for objective indications of a “qualifying chronic disability” that became manifest 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 not later than December 31, 2021. 38 C.F.R. § 3.317 (a)(1). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities that warrant a presumption of service-connection: (1) an undiagnosed illness; (2) a medically unexplained chronic multisymptom illness; or (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d). Signs or symptoms that may be manifestations of an undiagnosed illness include but are not limited to, fatigue, signs or symptoms involving the skin, muscle or joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system, and gastrointestinal signs or symptoms. Similarly, an unexplained chronic multisymptom illness is 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. Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained. 38 C.F.R. § 3.317. In this case, the Board determines that service connection on a presumptive basis for a qualifying disorder under 38 C.F.R. § 3.317 for the symptoms related to the Veteran’s skin disorder is not for application because the Board does not consider the Veteran’s complaints regarding his skin disorder and the symptoms thereof to represent an undiagnosed illness. Specifically, the March 2013 VA examiner diagnosed the Veteran with contact dermatitis and opined that the etiology of his contact dermatitis was presumed to be direct skin contact with an irritant on a periodic basis. Therefore, the Board determines that the symptoms related to the Veteran’s skin disorder are not due to an “undiagnosed” or “unexplainable” illness, nor are they considered to be a separate “chronic multisymptom illness” for which service connection may be granted on a presumptive basis under 38 C.F.R. § 3.317. Although the Veteran is not entitled to service connection for his skin disorder on a presumptive basis under 38 C.F.R. § 3.317, that does not preclude him from establishing that his skin disorder is, in fact, related to his active duty service. Nevertheless, based upon the evidence of record, the Board concludes that service connection for the Veteran’s skin disorder is not warranted because the evidence fails to establish that his skin disorder was caused by or is related to his active duty service. Initially, the Board acknowledges that the Veteran’s service treatment records contain one treatment record from February 1993, where the Veteran reported a skin problem and the treating physician observed that the Veteran had hives. However, given the lack of any additional treatment for skin disorders and the lack of any diagnosis of a chronic skin condition, the February 1993 treatment record, by itself, is insufficient to establish that the Veteran’s current skin disorder is related to his active duty service. Next, the post-service evidence does not indicate that the Veteran has experienced continuous symptoms related to his skin disorder since active duty service. Here, the post-service evidence shows that the Veteran reported symptoms of a skin disorder beginning in April 1996, approximately three years after his separation from service, and continuing in August 1997, November 2000, February 2003, and August 2006. The clinical evidence does not reflect additional reports of skin problems after August 2006. Moreover, the Board observes that the reports of skin problems by the Veteran were infrequent. Therefore, a continuity of symptoms based upon the clinical evidence is not sufficient to support a direct nexus. The Board acknowledges the statements from the Veteran regarding the history of symptoms of his skin disorder since service. While the Veteran is competent to report that he experienced symptoms such as itchy skin or rashes, he is not competent to provide a diagnosis or determine that these symptoms were manifestations of a particular disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Nevertheless, to the extent the Veteran asserts that his skin disorder has persisted since service, the Board determines that the Veteran’s reported history of continued symptoms while competent, is nonetheless not probative in establishing the nexus element. As an initial matter, the infrequency, gaps in, and cessation of treatment for this disorder weighs against the Veteran’s claims. Additionally, the Board notes that prior to filing the skin disorder claim currently on appeal, the Veteran filed several claims for VA benefits, including in July 1993. Therefore, the fact that the Veteran was aware of the VA benefits system and sought out other claims for other benefits, but made no reference to the skin disorder he now claims, weighs heavily against his credibility. Finally, service connection may be granted when the evidence establishes a medical nexus between active duty service and the current diagnosis. However, the Board finds that the weight of the competent evidence does not attribute the Veteran’s skin disorder to active duty service, despite his contentions to the contrary. Here, the Board places significant probative weight on the opinion of the March 2013 VA examiner. The March 2013 VA examiner opined that the etiology of the Veteran’s skin disorder was presumed to be direct skin contact with an irritant on a periodic basis. In support of that opinion, the March 2013 VA examiner explained that the Veteran had been treated from time to time for self-limited mild rashes on his forearms and upper back and, based upon a VA allergy evaluation, was sensitive to common allergens. Given his in-person examination of the Veteran, review of Veteran’s claims file, and his expertise, the Board finds that the March 2013 VA examiner provided a persuasive rationale and a probative opinion. Moreover, the Board notes that the Veteran has not provided sufficient evidence, including private opinions and/or medical evidence, to establish a nexus between the disorders on appeal to active service. In arriving at its conclusion, the Board has also considered the statements made by the Veteran relating his skin disorder to active service. The Federal Circuit has held that “[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.” Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the Veteran is not competent to provide testimony regarding the etiology of his skin disorder. See Jandreau, 492 F.3d at 1377, n.4. Although the Veteran can provide competent testimony regarding symptoms, his skin disorder is not a disorder that can be diagnosed by its unique and identifiable features as it does not involve a simple identification that a layperson is competent to make. In any event, the diagnoses of dysfunctions and disorders, and their respective etiologies, are medical determinations and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, to the extent that the Veteran believes that his skin disorder is related to service, he is a lay person without appropriate medical training and expertise to provide a medical diagnosis and etiological opinion. By virtue of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran’s skin disorder claim and service connection is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for an undiagnosed illness or a medically unexplained chronic multisymptom illness (MUCMI) pursuant to 38 U.S.C. § 1117, to include muscle and joint pain and a fatigue disorder, is remanded. While the Board regrets the delay, additional development is required before this appeal may be adjudicated. Here, record reflects that the Veteran exhibited several of the signs and symptoms identified in 38 U.S.C. § 1117(g) to establish presumptive service connection. Specifically, at the March 2013 VA examination, the Veteran reported morning fatigue, chronic joint pain, including the gradual onset of pain in his hands, elbows, shoulders, and knees, and the examination notes a diagnosis of chronic fatigue syndrome due to depression. Additionally, treatment records reflect that the Veteran reported intermittent muscular pain in his left leg in April 1999, left shoulder pain and weakness in his fingers in May 2005, and generalized fatigue with muscle and joint aches in June 2008. Moreover, the Veteran served in Southwest Asia and qualifies as a Persian Gulf Veteran. Thus, the Veteran legally qualifies for consideration for entitlement to service connection for an undiagnosed illness or MUCMI under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. The record also reflects that the March 2013 VA examiner considered whether the Veteran’s morning tiredness and joint pains were related to his service in the Gulf War and opined that his morning tiredness and fatigue were less likely than not incurred in or caused by such service. However, despite performing this examination, the March 2013 VA examiner never determined whether the Veteran had an undiagnosed illness or MUCMI under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317, necessitating a remand for a new VA examination and issuance of an SSOC adjudicating that issue. Finally, given that the Veteran’s muscle and joint pain and fatigue disorder can be symptoms of an undiagnosed illness or MUCMI, those issues are not able to be adjudicated until the foregoing development is completed. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The matters are REMANDED for the following action: 1. Obtain any and all treatment records from the West LA VA Medical Center in Los Angeles, California since October 2015, and any other VA facility from which the Veteran has received treatment. If the Veteran has received additional private treatment, he should be afforded an appropriate opportunity to submit the medical records of such treatment. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his muscle and joint pain and fatigue. The examiner should acknowledge review of the claims file, including this remand, to become familiar with the relevant medical history of the preceding aliments. The examiner should conduct all tests and studies deemed appropriate. The examiner is asked to review the pertinent evidence, including the Veteran’s lay assertions regarding the history of his symptomatology, and undertake any indicated studies. Then, the examiner is asked to provide an expert medical opinion on each of the following questions: (a) Please state whether the Veteran’s muscle and joint pain symptoms are attributable to a known clinical diagnosis. If the Veteran does not now have, but previously had any such condition, when did that condition resolve? (b) Please state whether the Veteran’s fatigue symptoms are attributable to a known clinical diagnosis. If the Veteran does not now have, but previously had any such condition, when did that condition resolve? (c) Is it at least as likely as not that any diagnosed disorder had its onset directly during the Veteran’s service or is otherwise causally related to any event or circumstance of his service, including environmental exposures during service in Southwest Asia during the Persian Gulf War? (d) If any of the above symptoms are not attributable to a known clinical diagnosis, then is the Veteran’s disability pattern consistent with: (1) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, (2) a diagnosable chronic multisymptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis. In rendering an opinion, the examiner must discuss the Veteran’s reports of morning tiredness, chronic joint pain, the gradual onset of pain in his hands, elbows, shoulders, and knees, and generalized fatigue symptoms since service. Specifically, the examiner must discuss the Veteran’s assertion that these symptoms are indicative of an undiagnosed illness. A comprehensive rationale should be provided for each opinion rendered. If the examiner cannot provide an opinion without resort to speculation, he or she must provide a reason why this is so, and must state whether there is additional evidence that would permit the opinion to be rendered.   3. Following any additional indicated development, the AOJ should review the claims file and readjudicate the foregoing issues. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Crosnicker, Associate Counsel