Citation Nr: 18158364 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 15-07 194 DATE: December 14, 2018 ORDER The previously denied claim for service connection for a skin disorder is reopened; to that extent only, the appeal is granted. The previously denied claim for service connection for chronic fatigue syndrome (CFS) is reopened; to that extent only, the appeal is granted. The previously denied claim for service connection for posttraumatic stress disorder (PTSD) is reopened; to that extent only, the appeal is granted. Service connection for posttraumatic stress disorder (PTSD) is granted. Service connection for a skin disorder is denied. REMANDED Entitlement to service connection for chronic fatigue syndrome (CFS), to include as secondary to a heart disorder, is remanded. Entitlement to service connection for a respiratory disorder, to include as secondary to a heart disorder, is remanded. Entitlement to service connection for valvular heart disease, to include as secondary to service-connected anxiety, is remanded. Entitlement to service connection for fibromyalgia is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran did not appeal an April 1998 rating decision which denied service connection for a skin disorder, but evidence received since that decision relates to a previously unestablished element of the claim. 2. The Veteran did not appeal an April 1998 rating decision which denied service connection for CFS, but evidence received since that decision relates to a previously unestablished element of the claim. 3. The Veteran did not appeal an October 1995 rating decision which denied service connection for PTSD, but evidence received since that decision relates to a previously unestablished element of the claim. 4. The Veteran’s diagnosed PTSD is related to service. 5. The Veteran’s skin disorder, diagnosed as dermatitis, is not related to his active service. CONCLUSIONS OF LAW 1. The April 1998 rating decision which denied service connection for a skin disorder is final, but new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.104(a), 3.156, 3.160(d), 20.200, 20.302, 20.1103. 2. The April 1998 rating decision which denied service connection for CFS is final, but new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.104(a), 3.156, 3.160(d), 20.200, 20.302, 20.1103. 3. The October 1995 rating decision which denied service connection for PTSD is final, but new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.104(a), 3.156, 3.160(d), 20.200, 20.302, 20.1103. 4. The criteria for service connection for PTSD are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304. 5. The criteria for entitlement to service connection for a skin disorder have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claims to Reopen 1. Skin Disorder 2. CFS 3. PTSD Generally, a claim that has been denied by an unappealed regional office decision may not thereafter be reopened. 38 U.S.C. §§ 7104(b), 7105(c). An exception to this rule exists for cases in which new and material evidence is presented or secured with respect to a claim that has been disallowed, in which case the claim must be reopened and the former disposition reviewed. 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decisionmakers, and material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). This is a low threshold in which the phrase raises a reasonable possibility should be interpreted as enabling rather than precluding reopening. Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The credibility of the newly-submitted evidence is presumed, although not blindly accepted as true if patently incredible. Justus v. Principi, 3 Vet. App. 510 (1992). The Veteran’s claims for service connection for CFS and a skin disorder were initially denied in an April 1998 rating decision. The Veteran’s claim for PTSD was denied in an October 1995 rating decision. The bases of the denials were that the evidence did not reflect that the Veteran had current diagnoses of a skin disorder, CFS, or PTSD. Since the April 1998 rating decision, additional evidence has been received. In a May 2011 statement, the Veteran’s treating physician indicated the Veteran has a diagnosis of Gulf War Syndrome, to include CFS. Additionally, a December 2013 VA progress note showed a diagnosis of dermatitis and an August 2017 VA discharge summary showed a diagnosis of PTSD. This evidence is new, as it was not part of the record at the time of the prior denial. It is also material, as it raises the possibility that service connection for a skin disorder, CFS, and PTSD may be warranted. As new and material evidence has been received, the claims are reopened. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2015). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). 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). The Veteran raised the theory of whether the presumptions set forth in 38 C.F.R. § 3.317 applied to his claim. VA is authorized to compensate any Persian Gulf Veteran with a chronic disability resulting from an undiagnosed illness, or combination of undiagnosed illnesses, which became manifest either during active duty in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more within a presumptive period following service in the Southwest Asia theater of operations during the Persian Gulf War. 38 U.S.C. § 1117 (2012). The Veteran is a Persian Gulf Veteran. 38 C.F.R. § 3.317(e)(1) (2017). A qualifying chronic disability as that which results from an undiagnosed illness, a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms such as CFS, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), or any diagnosed illness that VA determines in regulations warrants a presumption of service connection for infectious diseases. 38 U.S.C. § 1117 (2012); 38 C.F.R. § 3.317 (2017). An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. at 8-9. Further, lay persons are competent to report objective signs of illness. Id. A medically unexplained chronic multisymptom 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. 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(a)(2)(ii). For purposes of section 3.317, 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. 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. 38 C.F.R. § 3.317(a)(4). If signs or symptoms have been medically attributed to a diagnosed (rather than undiagnosed) illness, the Persian Gulf War presumption of service connection does not apply. VAOPGCPREC 8-98. 4. PTSD The Veteran and his attorney contend the Veteran is entitled to service connection for PTSD due to an event that occurred during the Veteran’s service. The Veteran is currently service connected for an anxiety disorder. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., in accordance with DSM-5); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). In the present case, the Board concludes that the Veteran has a current diagnosis of PTSD that is related to an in-service event. 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), 3.304(f). VA treatment records show the Veteran has a diagnosis PTSD since July 2015. The Veteran also has a confirmed in-service stressor. In a November 1992 letter, the Veteran described two stressful incidents including receiving friendly fire and the deaths of two fellow service members during an attack. These incidents were verified in an April 1994 letter. Furthermore, the Veteran is in receipt of the Combat Infantry Badge (CIB). Finally, the evidence establishes a link between current symptoms and the verified in-service stressors. In an August 2017 VA PTSD treatment note, the Veteran reported exposure to trauma while serving in the infantry in the Army in Operations Desert Shield and Desert Storm. The VA psychologist reported the Veteran meets the DSM-V criteria for a diagnosis of PTSD. The Board resolves any reasonable doubt in favor of the Veteran and concludes that the requirements of 38 C.F.R. §§ 3.303 and 3.304(f) have been met; therefore, service connection for PTSD is warranted. 5. Skin The Veteran seeks service connection for a skin disorder. Other than the initial application and notice of disagreement, the Veteran has not provided any supporting documentation in support of why he believes that his skin disorder is due to service. As an initial matter, the Board notes that the Veteran’s VA treatment records show a history of dermatitis as early as September 1993. As the record shows a diagnosis of a skin disorder during the course of this appeal, the first criterion for establishing service connection has been met. The question becomes whether this condition is related to service. Here, the Veteran’s skin disorder has been medically attributed to a diagnosis of dermatitis. Therefore, it is not considered an “undiagnosed illness.” Further, it is not a medically unexplained chronic multisymptom illness because it is not characterized by overlapping signs and symptoms. Additionally, dermatitis is not an infectious disease as set forth in 38 C.F.R. § 3.317(c)(2). Therefore, presumptive service connection under 38 C.F.R. § 3.317 is not warranted. Although the Veteran is not entitled to a regulatory presumption of service connection for his skin cancer, the claim must be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994), rev’d in part, Combee v. Principi, 4 Vet. App. 78 (1993). As for direct service connection, service treatment records show no complaints of or treatment for a skin condition during service. Moreover, the earliest record of a complaint of a skin disorder is in a September 1993 treatment note. At that time, the Veteran reported a two-week history of pruritic hands and arms. The first diagnosis of a skin disorder is in a July 1995 VA treatment note. In a November 1996 Persian Gulf War Questionnaire, the Veteran reported skin rashes after Persian Gulf War service. The Veteran has not submitted lay contentions or evidence regarding direct service connection for a skin disorder. There is no medical evidence of record suggesting a link between his skin disorder and service. Furthermore, the Veteran has not submitted medical or lay evidence explaining why his skin disorder is directly related to Persian Gulf service. After review of the record, the Board finds that there is no probative evidence indicating that the Veteran’s skin disorder is related to service. REASONS FOR REMAND 1. OSA The Veteran asserts service connection for OSA is warranted as due to active service. The Veteran submitted a March 2011 letter from his counselor indicating he has had sleep apnea since his initial claims in 1992. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for OSA because no VA examiner has opined whether the Veteran’s OSA was incurred during active service. 2. Fibromyalgia The Veteran asserts service connection for fibromyalgia is warranted. The RO denied service connection on the basis of no current diagnosis. An August 2012 VA examination noted no diagnosis of fibromyalgia. However, a September 2012 VA progress note indicates a diagnosis of fibromyalgia. As such, the Board finds an additional VA examination is necessary to determine whether the Veteran has had a diagnosis of fibromyalgia at any time during the appeals period. 3. Valvular Heart Disease The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a heart disorder because no VA examiner has opined whether the Veteran’s diagnosed valvular heart disease is aggravated by his service-connected anxiety. 4. CFS 5. Respiratory Disorder 6. TDIU In a June 2011 VA examination, the examiner noted the Veteran’s heart condition causes fatigue, pain, and dyspnea. Therefore, a decision on the remanded issue of service connection for a heart disorder could significantly impact a decision on the issues of entitlement to service connection for CFS, a respiratory disorder, and TDIU, the issues are inextricably intertwined. A remand of the claims of entitlement to service connection for CFS, a respiratory disorder, and TDIU is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to obtain an opinion addressing the nature and etiology of the Veteran’s OSA. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including environmental exposures in the Persian Gulf. 2. Schedule the Veteran for an examination by an appropriate clinician to obtain an opinion addressing the nature and etiology of any diagnosed fibromyalgia. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including environmental exposures in the Persian Gulf. 3. Schedule the Veteran for an examination by an appropriate clinician to obtain an opinion addressing the nature and etiology of the Veteran’s valvular heart disease. (a.) The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. (b.) Additionally, the examiner should opine whether the Veteran’s valvular heart disease is at least as likely as not (1) caused by or (2) aggravated by service-connected psychiatric disabilities. MATTHEW TENNER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Diane M. Donahue Boushehri, Counsel