Citation Nr: 21000503 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 10-20 949 DATE: January 5, 2021 ORDER Service connection for a left hand disorder as a chronic qualifying disability only is denied. Service connection for a right hand disorder as a chronic qualifying disability only is denied. Service connection for a disorder manifested by joint pain as a chronic qualifying disability only is denied. Service connection for a disorder manifested by internal bleeding as a chronic qualifying disability only is denied. Service connection for PPD converter as a chronic qualifying disability only is denied. Service connection for a left ankle disorder as a chronic qualifying disability only is denied. Service connection for a right ankle disorder as a chronic qualifying disability only is denied. Service connection for a skin disorder as a chronic qualifying disability only is denied. REMANDED Entitlement to service connection for a left ankle disorder on a direct basis. Entitlement to service connection for a right disorder on a direct basis. Entitlement to service connection for a skin disorder on a direct basis. FINDINGS OF FACT The Veteran’s claimed left hand, right hand, joint pain, internal bleeding, PPD, left ankle, right ankle, and skin disorders are attributable to a diagnosed condition. CONCLUSIONS OF LAW 1. The criteria for service connection for a left hand disorder or right hand disorder as a chronic qualifying disability are not met. 38 U.S.C. §§ 1101, 1110, 1117, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.7, 3.303, 3.317 (2020). 2. The criteria for service connection for a disorder manifested by joint pain as a chronic qualifying disability are not met. 38 U.S.C. §§ 1101, 1110, 1117, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.7, 3.303, 3.317 (2020). 3. The criteria for service connection for a disorder manifested by internal bleeding as a chronic qualifying disability are not met. 38 U.S.C. §§ 1101, 1110, 1117, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.7, 3.303, 3.317 (2020). 4. The criteria for service connection for PPD converter as a chronic qualifying disability are not met. 38 U.S.C. §§ 1101, 1110, 1117, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.7, 3.303, 3.317 (2020). 5. The criteria for service connection for a left ankle disorder or right ankle disorder as a chronic qualifying disability are not met. 38 U.S.C. §§ 1101, 1110, 1117, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.7, 3.303, 3.317 (2020). 6. The criteria for service connection for a skin disorder as a chronic qualifying disability are not met. 38 U.S.C. §§ 1101, 1110, 1117, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.7, 3.303, 3.317 (2020). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from June 1988 to June 1991, with subsequent Reserve service. The Veteran’s claims come before the Board of Veterans’ Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs’ (VA) Regional Office (RO) in Waco, Texas. This case was most previously before the Board in December 2019. In October 2013, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran offered testimony before the undersigned Veterans Law Judge at a Board hearing in October 2013. The Board finds that all requirements for hearings have been met. 38 C.F.R. § 3.103(c)(2) (2020); Bryant v. Shinseki, 23 Vet. App. 488 (2010). To the extent that any evidentiary deficiency was noted, the Board finds that it has been cured on remand. The Board also finds that there has been compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Laws and regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2020). To establish a right to compensation for a present disability, a Veteran 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- the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2020). In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2020); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2020); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection is granted for Persian Gulf Veterans with a chronic disability resulting from an undiagnosed illness or medically unexplained chronic multisymptom illness that became manifest during active duty in the Southwest Asia theater of operations or became manifest to a compensable degree within the prescribed presumptive period. 38 U.S.C. § 1117 (2012); 38 C.F.R. § 3.317(a)(1)(i) (2020). A Persian Gulf Veteran is one who served in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317 (e)(1). The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(e)(2). The term qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; or (B) a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) functional gastrointestinal disorders (excluding structural gastrointestinal diseases). 38 U.S.C. §§ 1117, 1118 (2012); 38 C.F.R. § 3.317(a)(2)(i). An undiagnosed illness is a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. 38 C.F.R. § 3.317(a)(1). 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). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). A medically unexplained chronic multisymptom illnesses is defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that VA determines meets the criteria in paragraph 3.317(a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness. 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 will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). With claims for service connection 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. Gutierrez, 19 Vet. App. 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). 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 (August 3, 1998). Nevertheless, consideration must be given to service connection on a direct basis for that diagnosis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Left hand disorder, right hand disorder, a disorder manifested by joint pain, a disorder manifested by internal bleeding, and PPD all as a chronic qualifying disability. The December 2019 Board decision denied service connection on a direct basis for these disabilities. The only issue remaining as to these issues is whether the Veteran is entitled to service connection on the basis that the disabilities are a chronic qualifying disability. The prior Board remand instructed VA to obtain an opinion on whether the Veteran’s complaints of left and right hand and joint pain was an undiagnosed illness or diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology. The August 2020 VA examiner noted that the Veteran’s hands and joint complaints were related to gout (sometimes referred to as gouty arthritis on the Veteran’s active VA problem list), a clearly defined diagnosis that was caused by a buildup of uric acid crystals in the joints that was not caused by exposure to chemicals. The Board observes that the Veteran has been prescribed medication (Colchicine) to be taken at the onset of gout flare-ups. As the Veteran’s hand and joint complaints are not shown to be associated with a chronic qualifying disability or medically unexplained chronic multisymptom illness, but rather attributable to known diagnoses (gout), entitlement to presumptive service connection under the provisions of 38 C.F.R. § 3.317 is not warranted. In the same manner, the August 2020 VA examiner has indicated that the Veteran’s gastrointestinal bleeding was related to diverticulitis and could not be related to chemical exposure. As the Veteran’s disorder manifested by internal bleeding is not shown to be associated with a chronic qualifying disability or medically unexplained chronic multisymptom illness, but rather attributable to a known diagnoses (diverticulitis), entitlement to presumptive service connection under the provisions of 38 C.F.R. § 3.317 is not warranted. As for PPD, the August 2020 VA examiner indicated that the Veteran had no skin condition other than dermatitis. The August 2020 VA examiner also noted that the Veteran did not have any skin condition that could be related to anthrax, and observed that dermatitis had not been associated with chronic anthrax skin issues. As the Veteran’s claimed disorder is attributable to a known diagnoses (dermatitis), entitlement to presumptive service connection under the provisions of 38 C.F.R. § 3.317 is not warranted. Left and right ankle disability and skin disability as a chronic qualifying disability. The Veteran seeks service connection for a skin disability and a left and right ankle disability on a direct basis and also as a result of having an ankle or skin disorder as due to a chronic qualifying disability. This portion of the decision deals only with the Veteran’s claim of service connection as due to a chronic qualifying disability. The August 2020 VA examiner indicated that the Veteran’s left and right ankle complaints were related to a diagnosis of gout. The Veteran was also diagnosed with dermatitis. As the Veteran’s ankle and skin complaints are not shown to be associated with a chronic qualifying disability or medically unexplained chronic multisymptom illness, but rather attributable to known diagnoses (gout and dermatitis), entitlement to presumptive service connection under the provisions of 38 C.F.R. § 3.317 is not warranted. REASONS FOR REMAND As for the issues of service connection on a direct basis for left ankle, right ankle, and skin disability, remand is required to obtain an adequate VA examination and opinion. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Where the Veteran has provided lay testimony of an in-service injury, an examiner cannot ignore that lay evidence and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Generally, a medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). The August 2020 VA examiner provided a negative nexus opinion (as to direct service connection) regarding the right and left ankle and skin disability claims. In providing the opinions, however, it appears that the August 2020 VA examiners essentially relied on the absence of in-service corroborating medical records as the reason for providing the negative opinion. There is no clear underlying explanation. Additionally, the Veteran’s lay statements were not discussed. Based on the foregoing, another opinion must be obtained. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment on and after August 18, 2019. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his left and right ankle and skin disorders. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s left ankle, right ankle, or skin disorder had its onset in, or is otherwise caused by, the Veteran’s military service. The examiner must consider and discuss the Veteran’s lay statements wherein he has indicated that he has had the left ankle, right ankle, and skin symptoms continuously since service. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his skin disorders. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s skin disorder had its onset in, or is otherwise caused by, the Veteran’s military service. The examiner must consider and discuss the Veteran’s lay statements wherein he has indicated that he has had the skin symptoms continuously since service. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2019). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David Nelson 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.