Citation Nr: 18151884 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 11-02 177 DATE: November 20, 2018 ORDER Entitlement to service connection for constipation to include as undiagnosed illness due to Gulf War exposure is denied. Entitlement to service connection for hair loss, to include alopecia is granted. REMANDED Entitlement to service connection for sinus infection, to include rhinitis is remanded. Entitlement to service connection for a respiratory condition, to include asthma, chronic obstructive pulmonary disease (COPD), or shortness of breath due to undiagnosed illness. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has constipation due to a disease or injury in service, to include specific in-service event, injury, or as an undiagnosed illness due to Gulf War service. 2. The Veteran’s alopecia began during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for constipation are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for hair loss, diagnosed as alopecia are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1980 to February 1983 and November 1990 to July 1991 in the United States Army. The Veteran’s claims for shortness of breath and constipation as due to an undiagnosed illness were previously characterized as a single claim. However, in light of the development following the Board’s most recent remand the claims have been recharacterized as stated above. In a November 2017 rating decision, an RO granted service connection for migraines. As this represent full grants of the benefits sought with respect to this issue, it is no longer before the Board. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) 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 service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 1. Entitlement to service connection for constipation, to include as undiagnosed illness due to Gulf War Syndrome is denied. The Veteran contends that he has constipation that is an undiagnosed illness the result of his active duty service and environmental exposure in the Gulf War. The question for the Board is whether the Veteran has constipation that is attributable to an undiagnosed illness associated with Gulf War service. A Persian Gulf veteran is defined as a veteran who served on active duty in the Armed Forces in the Southwest Asia Theater of operations during the Persian Gulf War. See 38 U.S.C. § 1117 (f); 38 C.F.R. § 3.317 (d). The Veteran’s military records document that he served in Southwest Asia during the Persian Gulf War. Under 38 U.S.C. § 1117 (a)(1), compensation is warranted for a Persian Gulf veteran who exhibits objective indications of a “qualifying chronic disability” that became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. Effective December 29, 2011, VA extended the presumptive period in 38 C.F.R. § 3.317 (a)(1)(i) through December 31, 2016 (for qualifying chronic disabilities that become manifest to a degree of 10 percent or more after active duty in the Southwest Asia theater of operations). See 76 Fed. Reg. 81834 -36 (Dec. 29, 2011). Furthermore, the chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a), (b). A “qualifying chronic disability” includes (a) undiagnosed illness, (b) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases) 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. See 38 C.F.R. § 3.317 (a)(2); see also 75 Fed. Reg. 61995-97 (2010); 76 Fed. Reg. 41696-98 (July 15, 2011). Signs or symptoms that may be manifestations of undiagnosed illness or a chronic multi-symptom illness include the following: fatigue, unexplained rashes or other dermatological signs or symptoms, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the upper or lower respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. See 38 U.S.C. § 1117 (g). With claims for service connection for a qualifying chronic disability under 38 C.F.R. § 3.317, the veteran is not required to provide competent evidence linking a current disability to an event during service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). The symptom, which is capable of lay observation, is presumed to be related to service, and unlike a claim of “direct service connection,” VA cannot impose a medical nexus requirement. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Further, lay persons are competent to report objective signs of illness such as joint pain or fatigue. Id at 9-10. Undiagnosed pain may be the basis of an award of compensation under 38 U.S.C. § 1117. Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014). The Veteran’s claims were most recently remanded by the Board in a June 2017 decision to clarify whether the Veteran’s complaints of constipation were the result of an undiagnosed illness that is etiologically related to the Veteran’s Gulf War service. A VA medical opinion was obtained in June 2017. The VA examiner opined that the Veteran’s constipation did not manifest as a current “GI abnormality” and that the previous “periodic constipation more likely than not related to his poor water intake…[t]his does not rise to the level of a GI Abnormality.” Therefore, the Board finds that while the Veteran may have periodic constipation not attributable to a known diagnosis it is less likely than not due to Gulf War service as it has been attributed to poor water intake by competent medical opinion. While the Veteran believes his periodic constipation is related to an in-service injury, event, or disease, including as an undiagnosed illness due to Gulf War service, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires knowledge of the interaction between multiple organ systems in the body. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the June 2017 VA examination. 2. Entitlement to service connection for hair loss, to include alopecia, is denied. The Veteran contends that his diagnosed alopecia is etiologically related to service, to include exposure to ammunition dump fires during active duty. The Board concludes that the Veteran has a current diagnosis of alopecia that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). VA treatment records show the Veteran has a current diagnosis of alopecia, although the June 2017 VA examiner opined that the Veteran’s alopecia is less as likely as not related to service, to include exposure to ammunition dump fires. The examiner confirmed the diagnosis as alopecia areata but the rationale for the negative opinion was that the Veteran was not treated for alopecia during service or within a year after separation and that if the condition was etiologically related to exposure to ammunition dump fire contaminants it would have manifested in that time. Finally, the examiner discussed the findings from a previous VA examination in 2010. The Board notes that there has been some discrepancy in the Veteran’s diagnosis. The Veteran’s hair loss has been referred to as male pattern baldness in addition to alopecia areata during previous examinations, to include the April 2010 VA examination. However, the most recent VA examination has confirmed the diagnosis to be alopecia areata and the Board decisions of record have found the previous VA examinations of record to be inadequate leaving the adequate evidence to support the diagnosis of alopecia areata. The competent lay and medical evidence of record also indicates that the Veteran’s diagnosis of alopecia areata had its onset during active duty service. The July 2017 VA examination set a diagnosis date of 1990 during active duty service and the Veteran has competently stated, to include in sworn testimony, that he began noticing hair loss in patches while deployed to Iraq which continued since service, leading the Veteran to begin shaving his head. Therefore, given that the evidence of record supports a finding that the Veteran’s diagnosed alopecia areata had its onset during active duty service the condition is entitled to service connection. REASONS FOR REMAND 1. Entitlement to service connection for a sinus infection or rhinitis, is remanded. The Board cannot make a fully-informed decision on the claims because no VA examiner has adequately opined whether the diagnosed rhinitis is etiologically related to ammunition dump and oil well fires. The most recent VA medical opinion relies soley on the passage of time between in-service exposure and diagnosis of rhinitis. However, the examiner failed to provide adequate rationale to explain why the passage of time alone between exposure to ammunition dump and oil well fires and manifestations of rhinitis symptoms is suffiecient to preclude an etiological relationship. 2. Entitlement to service connection for a respiratory condition, to include asthma, COPD, or undiagnosed shortness of breath is remanded. The Board cannot make a fully-informed decision on the issue of entitement to service connection for a respiratory condition because no VA examiner has adequatly opined as to the nature of the Veteran’s current respiratory conditins, whether any diagnosed respiratory conditon is etiologically related to active duty service including expsoure to ammunition dump or oil well fires, and alternatively whether any shortness of breath is attributable to an undiagnosed illness that is related to the Vetearn’s active duty service in the Gulf War. The most recent VA medical opinion addressesed asthma as well as shortness of breath. The VA examiner opined that the Veteran’s asthma was less likely than not due to exposure to ammunition fire dumps, citing the passage of time from such exposure to the diagnosis of asthma. The examiner did not, however, comment on the Veteran’s competent reports of experiencing difficulties with breathing since service. With regard to the Veteran’s claims of shortness of breath as an undiagnosed illness the VA examiner opined that the Veteran has no respiratory conditions other than asthma although the Veteran’s VA treatment records indicate that he has reported a diagnosis of COPD which was not addressed. Additionally, the VA examiner was specifically asked whether the shortness of breath was an undiagnosed illness and therefore lack of additional diagnosed respiratory condition is not satisfactory rationale. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s sinus infections and rhinitis, is at least as likely as not related to exposure to ammunition dump or oil well fires. A complete rationale must be provided for all opinions offered. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any shortness of breath or respiratory condition, to include asthma and COPD. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including exposure to ammunition dump and oil well fires. If the Veteran’s shortness of breath is not a symptom attributable to asthma or COPD, are the manifestations of the Veteran’s shortness of breath symptoms consistent with an undiagnosed illness attributable to his period of service in the Southwest Asia Theatre of Operations? A complete rationale must be provided for all opinions offered. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P.S. McLeod