Citation Nr: 20045083 Decision Date: 07/07/20 Archive Date: 07/07/20 DOCKET NO. 12-34 042 DATE: July 7, 2020 ORDER Entitlement to service connection for skin conditions, to include as due to an undiagnosed illness related to service in Southwest Asia, is denied. Entitlement to service connection for respiratory conditions (including sleep apnea), to include as due to an undiagnosed illness related to service in Southwest Asia, is denied. Entitlement to service connection for gastrointestinal conditions other than irritable bowel syndrome, to include as due to an undiagnosed illness related to service in Southwest Asia, is denied. FINDINGS OF FACT 1. The Veteran does not have a current skin diagnosis that is incurred in or due to his service. 2. The Veteran’s respiratory condition, to include sleep apnea, is not incurred in or due to his service. 3. The Veteran’s gastrointestinal condition, other than IBS, is not shown to be incurred in or due to his service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for skin conditions, to include as due to an undiagnosed illness related to service in Southwest Asia, have not been met. 38 U.S.C. § 1110; 1117(d); 5107; 38 C.F.R. § 3.159; 3.303; 3.304; 3.317. 2. The criteria for entitlement to service connection for respiratory conditions including sleep apnea to include as due to an undiagnosed illness related to service in Southwest Asia, have not been met. 38 U.S.C. § 1110; 1117(d); 5107; 38 C.F.R. § 3.159; 3.303; 3.304; 3.317. 3. The criteria for entitlement to service connection for gastrointestinal conditions other than irritable bowel syndrome, to include as due to an undiagnosed illness related to service in Southwest Asia, have not been met. 38 U.S.C. § 1110; 1117(d); 5107; 38 C.F.R. § 3.159; 3.303; 3.304; 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1969 to August 1971 and November 1990 to May 1991, with service in Southwest Asia during the Gulf War and additional service until his retirement in July 1997. The Board sincerely thanks the Veteran for his service to our country. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans’ Affairs (VA) Regional Office (RO), in Newark, New Jersey. These matters were previously before the Board in July 2016 and April 2018. In January 2016, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. Service Connection Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for any disease 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. To substantiate a claim of service connection, there must be evidence of: (1) a current disability; (2) a disease, injury, or event in service; and (3) a nexus or causal relationship between the claimed disability and the disease, injury, or event in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Because the Veteran served in the Southwest Asia theater of operations during the Persian Gulf War, service connection may also be established under 38 C.F.R. § 3.317. Under that section, service connection may be warranted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active 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 by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnoses. 38 C.F.R. § 3.317(a). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multisymptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. Medically unexplained chronic multisymptom illnesses include functional gastrointestinal disorders; IBS is a functional gastrointestinal disorder. 38 C.F.R. § 3.317. 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 / 38 C.F.R. § 3.117, 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. 1, 8-9 (2004). Further, lay persons are competent to report objective signs of illness. Id. A "medically unexplained chronic multisymptom illness" is one defined by a cluster of signs or symptoms, and specifically includes functional gastrointestinal disorders such as irritable bowel syndrome. It 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 will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). "Objective indications of 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). Decisions of the Board shall consider all information and lay and medical evidence of record in a case. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.303(a). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). 1. Entitlement to service connection for skin conditions, to include as due to an undiagnosed illness related to service in Southwest Asia The Veteran contends that he is he has a skin condition because he was stationed next to a chemical plant and scud missiles exploded above his campsite. See December 2019 correspondence. Service treatment records are silent for treatment or diagnosis of a skin condition. A January 1993 VA examination is silent for a skin condition. The Veteran’s Reserve Annual Certificate of Physical Condition dated from August 11, 1992 to July 13, 1996, are silent for subjective or objective evidence of dermatitis, a rash or skin condition. The Veteran denied current or past skin diseases in a July 1995 Report of Medical History (while the Veteran served in the Reserves). The Veteran has complained that, since returning from the Persian Gulf in 1991, he has had increased skin sensitivity, on and off rash, and reacts with red blotches or blisters to chemicals to which he did not previously react. See March 2000 and April 2000 VA treatment records. April 2000 VA treatment records diagnose the Veteran with irritant contact dermatitis by history. At the January 2016 hearing, the Veteran’s wife testified that, when the Veteran first came back from the war, he broke out in big blisters on his abdomen and legs. The Veteran is competent to report that he experienced skin symptoms. See McCartt v. West, 12 Vet. App. 164, 167-68 (1999) (a veteran is competent observe skin conditions such as boils, blotches, and rashes). However, he is not competent to state that those symptoms are related to a specific diagnosis, or to state that such a diagnosis is related to in-service exposure to various agents Southwest Asia. Davidson v. Shinseki, 581 F.3d 1313 (2009); Barr, 21 Vet. App. at 303. Further, at the January 2016 hearing before the undersigned, the Veteran testified that he had no skin problems during service, and that he does not have a current skin diagnosis. Similarly, at a January 2017 VA examination, the Veteran gave a history of breaking out on exposure to chemicals. The examiner noted a history of dermatitis, observed that the Veteran did not have a rash or blisters at the time, and did not diagnose the Veteran with current dermatitis. VA treatment records show that the Veteran has diagnoses of melanoma. See March 2020 VA examination. The March 2020 VA examiner stated that the Veteran's diagnosis of metastatic malignant melanoma is a condition with clear and specific etiology. The examiner opined that it is less likely an undiagnosed illness or a medical unexplained chronic multisymptom illness. The examiner further opined that diagnosis of metastatic malignant melanoma is less likely related to Gulf war exposures. Finally, the examiner opined that the Veteran's metastatic malignant melanoma is less likely related to the Veteran’s active duty service. The examiner reasoned that there is no evidence that transient exposures incurred during Gulf war had caused or aggravated skin cancers, including melanomas. The examiner stated that there was no evidence that veteran was seen for skin lesion involving the left ear, the source of the melanoma. Veteran was not diagnosed with or treated for any skin condition during service. He was diagnosed with skin cancer in 2017, after leaving service. The main risk factor for skin cancers, including melanoma, is sun light exposure. There is no evidence that any in service event or injury had caused or aggravated the malignant melanoma. The preponderance of medical evidence is against finding that the Veteran has a skin condition due to or incurred in service. The Veteran does not have a current diagnosis of dermatitis, has not claimed continuous symptoms of dermatitis since service, and the medical evidence of record is against finding that the Veteran’s melanoma is related to his military service. Service connection for a skin condition is not warranted; the claim must be denied. 2. Entitlement to service connection for respiratory conditions (including sleep apnea), to include as due to an undiagnosed illness related to service in Southwest Asia The Veteran contends that he has respiratory issues because he was stationed next to a chemical plant and scud missiles exploded above his campsite. See December 2019 correspondence. The Veteran has a current diagnosis of sleep apnea. See August 2009 private treatment records. At the January 2016 hearing before the undersigned, the Veteran testified that his respiratory problems are limited to sleep apnea. In a November 2019 VA medical opinion, the clinician opined that it is less likely than not that the Veteran’s sleep apnea is related to his active duty service. The clinician stated that the Veteran finished his military service – reserves and active duty – by 1997 and was diagnosed with sleep apnea in 2009. The clinician reasoned that typical risk factors for sleep apnea include age, and that there were more than 20 years between the Veteran’s separation from service and his diagnosis with sleep apnea. The clinician further reasoned that male gender is a risk factor for sleep apnea, and that the Veteran has a history of smoking. Finally, the clinician reasoned that being overweight or having an increased neck circumference are risk factors for obstructive sleep apnea. Accordingly, upon review and consideration of all the evidence of record, the Board finds that the probative evidence of record is against a finding that the Veteran’s sleep apnea is related to his military service. The claim must be denied. 3. Entitlement to service connection for gastrointestinal conditions other than irritable bowel syndrome, to include as due to an undiagnosed illness related to service in Southwest Asia The Veteran contends that effects of his Gulf service include Barrett’s esophagus. See January 2013 VA Form 9. A December 2011 private medical assessment notes esophageal reflux, Barrett’s esophagus, and a personal history of colonic polyps. A January 2016 private medical record notes that the Veteran has Barrett’s esophagus and gastroesophageal reflux disease (GERD). At the January 2016 hearing before the undersigned, the Veteran testified as to his now service-connected IBS. He testified that he has had gastrointestinal issues since returning from service; that he had constipation and diarrhea; and he gets treated every 2-3 years with colonoscopies. He did not testify as to his GERD or Barrett’s esophagus. The December 2019 VA examiner diagnosed the Veteran with GERD and Barrett’s esophagus. The examiner opined that the disability pattern related to GERD and Barrett's esophagus is less likely an undiagnosed illness or less likely a medically unexplained chronic multisymptom illness. The examiner further opined that the Veteran’s diagnosis of GERD and Barrett’s esophagus is less likely related to specific exposures incurred during service, and that the diagnosis of GERD and Barrett’s esophagus is less likely related to the Veteran's active duty. The examiner stated that both GERD and Barrett’s esophagus are GI conditions with clear and specific etiologies and diagnosis. He stated that GERD and Barrett’s esophagus are common esophageal conditions found in general population, and there is no evidence that transient exposures during service had caused or aggravated the GERD or Barrett’s esophagus. The examiner stated that there is no evidence the Veteran had chronic GERD symptoms during service. The examiner reasoned that the Veteran was not diagnosed with or treated for GERD during active service. The examiner noted that the Veteran complained of heart burn after leaving service in 1993, however he did not have any other complaints including stomach pain, nausea, or regurgitation. The examiner referenced a medical article which noted that the likelihood of GERD increases with other associated symptoms including stomach contents moving up to the throat or mouth (regurgitation), Trouble getting a good night's sleep because of heartburn or regurgitation, and need for over-the-counter medicine for heartburn or regurgitation, in addition to the medicine your doctor prescribed. The examiner reasoned that the Veteran did not report any other these symptoms during service or at the 1993 examination. The examiner further reasoned that complaint of heart burn by itself is not the same thing as GERD, and that heart burn can be intermittent and transient, and does not progress to GERD citing a second article noting that heart burn associated with GERD is frequent and occurs two or more times per week and is associated with other symptoms including regurgitation of food or sour liquid, difficulty swallowing, coughing, wheezing, and chest pain –e specially while lying down at night. The examiner again reasoned that there was no evidence the Veteran reported frequent heart burn in service, and he did not have any other symptoms commonly associated with GERD. The examiner opined that, as there was no evidence that his complaint of heart burn was occurring frequently and he did not have any other GERD associated symptoms, the diagnosis of GERD was less likely at that time. Accordingly, upon review and consideration of all the evidence of record, the   Board finds that the probative evidence of record is against a finding that the Veteran’s gastrointestinal disorder, other than IBS, is related to his military service. The claim must be denied. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board O. Halpern The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.