Citation Nr: 21000974 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 15-06 677A DATE: January 6, 2021 ORDER Entitlement to service connection for athlete’s foot is granted. Entitlement to service connection for a scar disability is granted. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a dental condition for compensation purposes is remanded. Entitlement to service connection for chronic fatigue syndrome, to include fatigue as due to a medically unexplained chronic multi symptom illness. Entitlement to service connection for joint and muscle pain, to include as due to a medically unexplained chronic multi symptom illness is remanded. FINDINGS OF FACT 1. The Veteran’s athlete’s foot began during active service. 2. The Veteran’s knee and thumb scars are related to his active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for athlete’s foot are met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2019). 2. The criteria for entitlement to service connection for a scar disability are met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2002 to March 2005. These matters come before the Board of Veterans’ Appeals (Board) on appeal from April 2013 and December 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for a back disability was remanded by the Board in June 2018. The Veteran attended a hearing before the undersigned Veterans Law Judge in September 2020. A transcript of the hearing has been associated with the claims file. The transcript of the September 2020 hearing indicates that there were some portions of the hearing were not transcribed. Documents in the claims file indicate that the Veteran understood that there were difficulties transcribing a portion of the hearing and that he did not want to attend a new hearing. 1. Entitlement to service connection for athlete’s foot is granted. The Veteran contends that he is entitled to service connection for athlete’s foot because his athlete’s foot began during service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran attended a VA examination in July 2018 which confirmed that has a current diagnosis of athlete’s foot and that he is treated with topical corticosteroids for six weeks or more but not constant. At the VA examination, the Veteran reported that his athlete’s foot began during basic training. The Veteran’s Service Treatment Records (STRs) do not show treatment for athlete’s foot but do show complaints of blisters in April 2002 after he finished a road march. The Veteran testified at the hearing in this matter that he experienced blisters and cracking of his feet while in service and that he self-treated with tinactin and moleskin during service. The Veteran further reported that, since service, he has received treatment from VA clinicians. The July 2018 VA examiner opined that the Veteran’s documented in-service complaints related to blisters were not related to his currently diagnosed athlete’s foot. The VA examiner opined that the Veteran did not have athlete’s foot during service and that he was only treated for blisters during service. However, at the hearing in this matter, the Veteran testified that his athlete’s foot began during service, and that he experienced athlete’s foot and treated with over the counter medications during service. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s currently diagnosed athlete’s foot began during service. Accordingly, the Board concludes that service connection for athlete’s foot is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for a scar disability is granted. The Veteran contends that he is entitled to service connection for a scar disability as he suffered scars on his knees and right thumb during service. The Board concludes that the Veteran has scars on his knees and right thumb which are related to injuries he received during 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). The Veteran attended a VA examination in July 2018 which confirmed that has scars on his right and left knee as well as his right thumb. At the VA examination, the Veteran reported that his knee scars were caused by falls during road marches and his thumb scar was caused by a 240B weapon system clamping shut on his hand in 2003. The Veteran’s Service Treatment Records (STRs) do not show treatment for scars. The Veteran testified at the hearing in this matter that his knee scars were caused by falls during road marches and that his thumb scar was caused when he “nipped [his] thumb with a K-bar” doing weapons maintenance and cleaning. The July 2018 VA examiner opined that the Veteran’s scars were less likely than not related to his active duty service because there were “no records to support the disability.” It is not sufficient to base a negative nexus opinion primarily based on the lack of documentation of an in-service injury during the Veteran’s active service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (holding that although “the lack of contemporaneous medical records may be a fact that the Board can consider and weigh against a veteran’s lay evidence, the lack of such records does not, in and of itself, render lay evidence not credible.”). Here, the Board finds that the Veteran has consistently and credibly reported receiving scars on his knees from falling during road marches, and while there is a minor inconsistency in the Veteran’s reports of how he injured his thumb during service, the Board finds the Veteran’s report of injuring his thumb while performing weapons maintenance to be credible. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s right thumb and bilateral knee scars were incurred during service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for the Veteran’s bilateral knee and right thumb scars is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a back disability is remanded. The Veteran reported during the September 2020 hearing that he fell during one of his in-service parachute jumps and bruised his tailbone. Although the Veteran has undergone multiple VA examinations, it appears that there has not yet been an opinion rendered as to whether the Veteran’s claimed bruised tailbone is related to his current back disability. On remand, the RO should obtain an addendum opinion as to whether the Veteran’s reported in-service tailbone injury is related to his current back disability. Also, the Veteran reported that he was treated at a VA domiciliary between February and August 2020, and that he received VA treatment after being discharged from the domiciliary. The most recent VA treatment records in the claims file are from June 2020, so there are likely to be outstanding VA treatment records and VA is generally required to make efforts to obtain those records. See Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). 2. Entitlement to service connection for a dental condition for compensation purposes is remanded. As discussed above, the Veteran has reported that he received VA treatment, and the claims file does not have complete records of that treatment. Pursuant to the Court’s ruling in Sullivan, VA must make efforts to obtain the Veteran’s outstanding VA treatment records. Thus, a remand is required for the RO to make efforts to obtain the Veteran’s outstanding VA treatment records. 3. Entitlement to service connection for chronic fatigue syndrome, to include fatigue as due to an unexplained chronic multi symptom illness. 4. Entitlement to service connection for joint and muscle pain, to include as due to an unexplained chronic multi symptom illness, is remanded. In the present case, the Veteran served in the Southwest Asia Theater of Operations during the Gulf War as shown by service personnel records. Thus, the Board finds that the Veteran is a “Persian Gulf Veteran” for the purposes of 38 C.F.R. § 3.317. See 38 C.F.R. § 3.317(e)(1). Service connection may be established on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of chronic disability resulting from an undiagnosed illness that became manifest either 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 which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1). In claims based on undiagnosed illness, 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). Notably, laypersons are competent to report objective signs of illness. Id. A “qualifying chronic disability” for purposes of 38 U.S.C. § 1117 is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, or a functional gastrointestinal disorder) that is defined by a cluster of signs or symptoms, or (C) any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service connection. 38 U.S.C. § 1117 (a)(2); 38 C.F.R. § 3.317 (a)(2)(i)(B). The term medically unexplained chronic multi-symptom illness (MUCMI) means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, or disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. 38 C.F.R. § 3.317 (a)(2)(ii); Stewart v. Wilkie, 30 Vet. App. 383, 391 (2018) (holding that an illness is a medically unexplained chronic multi-symptom illness where either the etiology or the pathophysiology of the illness is inconclusive). Therefore, even if a multi-symptom illness has a diagnosis, consideration should still be given as to whether the disability has no known etiology, or has a known, partially understood etiology. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained. Id. The determination of whether a condition is an MUCMI must be based on an individual Veteran’s circumstances rather than the illness as it is understood in the general public. Stewart, 30 Vet. App. at 391. “Objective indications of chronic disability” include both “signs,” in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317 (a)(2), (3). Signs or symptoms that may be manifestations of undiagnosed 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). The Veteran testified that he suffered from fatigue since 2015. He reported at his July 2018 Gulf War examination that he suffered from Chronic Fatigue Syndrome. The Veteran underwent a VA examination for his Chronic Fatigue Syndrome and reported that his fatigue symptoms began in 2017. The VA examiner reported that there was no objective evidence of a diagnosis for chronic fatigue syndrome, but did not discuss whether the Veteran’s reported fatigue could be a manifestation of an undiagnosed illness. On remand, an opinion should be obtained from a qualified clinician as to whether the Veteran’s reported fatigue could be a manifestation of an undiagnosed illness. The Veteran also reported pain in his back, ankles, elbows, forearm, hips, thigh, knees, lower legs at his July 2018 Gulf War medical examination. He also testified to having pain in his right shoulder. He reports that he has suffered joint pain since service. The Veteran also testified that he has been diagnosed with left hip arthritis, bilateral hip strain, bilateral elbow strain, arthritis of the spine, and bilateral ankle strain. The Veteran also is service connected for a bilateral knee and foot disability, among other disabilities. On remand, the RO should obtain a medical opinion which addresses 38 C.F.R. § 3.317 regarding a chronic disability due to undiagnosed illness or medically unexplained chronic multi-symptom illness, or otherwise present the examination findings in a manner that permits the Board to make the requisite determinations under 38 C.F.R. § 3.317. In particular, the examiner must consider all of the Veteran’s reported symptoms of fatigue, pain in his back, ankles, elbows, forearm, hips, thigh, knees, lower legs, and right shoulder since service. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from June 2020 to the present. 2. Obtain an addendum opinion regarding the Veteran’s back disability. The examiner must review the claims file. The examiner must opine whether the Veteran’s back disability is at least as likely as not related to service, including the Veteran’s reported bruised tailbone during service. Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? 3. Schedule the Veteran for a new examination (if found necessary) regarding his service connection claims for joint pain, to include back, ankles, elbows, forearm, hips, thigh, knees, lower legs, right shoulder pain, chronic fatigue. The examiner must specifically describe the functional impairment caused by the claimed symptoms of joint pain, to include back, ankles, elbows, forearm, hips, thigh, knees, lower legs, right shoulder pain, chronic fatigue. Next, the examiner must address whether the claimed symptoms of joint pain, to include back, ankles, elbows, forearm, hips, thigh, knees, lower legs, right shoulder pain, chronic fatigue are attributable to a diagnosed condition. If the symptoms are attributable to a diagnosed condition, the examiner must then discuss both the etiology and pathophysiology of the condition to which the Veteran’s reported symptoms have been attributed with emphasis on whether both the etiology and pathophysiology of the condition is understood or at least partially understood in the context of the Veteran’s unique circumstances. If any of the claimed symptoms are attributable to a diagnosed condition with both an etiology and pathophysiology that are at least partially understood in the context of the Veteran’s unique circumstances, the examiner must then address whether the condition is at least as likely as not (50 percent probability or greater) the result of disease or injury in active service. The examiner is advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. A complete rationale must be provided for all opinions expressed. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Boal, Associate Counsel 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.