Citation Nr: 21001472 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 12-23 364 DATE: January 8, 2021 ORDER The claim of entitlement to service connection for a skin condition is granted. The claim of entitlement to service connection for left upper leg numbness is granted. FINDINGS OF FACT 1. The Veteran served in the Southwest Asia theater of operations and his recurrent skin rashes, unspecified dermatitis, and chronic urticaria is a diagnosed illness without conclusive pathophysiology or etiology that has been manifest for more than six months and has required first line treatment (antihistamines) for control. 2. The Veteran’s left upper leg numbness began during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a skin condition, to include as due to an undiagnosed illness, have been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.303, 3.317, 4.118. 2. The criteria for service connection for left upper leg numbness have been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty in the United States Air Force from July 1990 to August 1995, with service in Southwest Asia (SWA). He had additional Reserve service. He received the Kuwait Liberation Medal, among other notable commendations. These matters come before the Board of Veterans’ Appeals (Board) from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Procedurally, these matters have been remanded multiple times by the Board since December 2014, including for additional medical opinion evidence. Specifically, VA examination evidence in this case has historically failed to adequately address competent lay and medical evidence of record. See e.g., July 2017 Board remand. In July 2019, the Board again remanded the claims due to lack of compliance with its July 2017 remand directives and specifically noted that it was remanding the matters of skin rash and leg numbness to be considered as manifestations of an undiagnosed illness. On remand, VA conducted additional development and obtained updated VA examinations and opinions regarding the Veteran’s claimed conditions, to include consideration of the Veteran’s conditions as related to his service in SWA. As outlined further below, the Board finds that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection 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). Where, as in this case, the Veteran is a Persian Gulf veteran, service connection may also be established for a qualifying undiagnosed illness or a medically unexplained chronic multisymptom illness (MUCMI) if the Veteran (1) exhibits objective indications, (2) of a chronic disability such as those listed in 38 C.F.R. § 3.317(b), (3) which became manifest either during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of ten percent or more not later than December 31, 2021, and (4) such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; Gutierrez v. Principi, 19 Vet. App. 1, 2 (U.S. 2004); 38 C.F.R. § 3.317. To determine whether the illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317(a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). For the purposes of 38 C.F.R. § 3.317(a)(2)(i), a qualifying chronic disability means one resulting from any of the following (or any combination of the following): (1) an undiagnosed illness; (2) a medically unexplained chronic multisymptom illness defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders. Signs or symptoms that may be manifestations of medically unexplained chronic multisymptom illness include signs or symptoms involving skin. 38 C.F.R. § 3.317(b). 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). The term “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). Compensation shall not be paid if: (1) there is affirmative evidence that an undiagnosed illness was not incurred during active military service in SWA; (2) if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the Veteran’s most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) if there is affirmative evidence that the illness is the result of the Veteran’s own willful misconduct or the abuse of alcohol or drugs. See 38 C.F.R. § 3.317. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. When the preponderance of the evidence weighs against the claims of the Veteran, the claim will be denied on its merits, and when the preponderance of the evidence weighs for the claims of the Veteran, the claim will be granted on its merits. In those cases, the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. at 54. 1. The claim of entitlement to service connection for a skin condition. The Veteran seeks service connection for a skin condition, which he relates to his active service. The Veteran asserts that his rashes began after [his] return from SWA and “have persisted [to the present]” and “gotten progressively worse over the years, but doctors have not been able to diagnose a cause.” See October 2009 Application for Compensation and/or Pension. He asserts that his condition could be due to his exposure to environmental hazards during his service in the Gulf War. See January 2019 Fully Developed Claim application. According to the Veteran’s lay statements, his rashes follow any activity level beyond basic moving and walking. See October 2020 Correspondence. Several of the Veteran’s statements indicate the Veteran’s belief that his rash symptoms occur at the same time as other symptoms of an undiagnosed illness with swelling and fatigue. See January 2011 notice of disagreement (NOD). The Board noted in its July 2019 remand decision that while the Veteran is currently service-connected for an undiagnosed illness, this disability only extends to joint pain and swelling and chronic fatigue syndrome, not for an autoimmune disorder or a condition that could encompass his skin rashes. Following this remand, the Veteran was provided additional VA examination. The Board, having fully considered the evidence of record and most recent medical examinations, finds the evidence to be in equipoise as to whether the Veteran’s skin condition began during or is otherwise related to his active service. The evidence of record establishes that the Veteran has a current skin condition, which has been variably diagnosed as recurrent rashes, urticaria, and unspecified dermatitis. He has experienced symptoms of this condition throughout the duration of his appeal. See e.g., August 2010 VA examination; September 2020 VA examination. The Veteran’s enlistment records are silent for a skin condition of any sort prior to his active duty service. The Veteran’s lay statements as outlined above, which the Board find to be competent and credible, show that the Veteran began experiencing his current skin symptoms during his active duty, and that such symptoms have continued to the present day at varying degrees of severity. The Veteran’s service treatment records (STRs) support his contentions; during his active service, one STR shows that the Veteran complained of a rash on his hands, which an evaluating provider described as dry and scaly, and assessed as probable dyshidrotic eczema. See November 1991 STR. A September 1992 record identified a mild skin disorder in reference to complaint of joint pain and swelling. The post-service medical records relating to the identification and treatment of the Veteran’s skin condition are inconsistent. According to May 2005 treatment records from the Veteran’s private doctor, who has the initials C.G., the Veteran denied allergy conditions such as urticaria, allergic rash, and recurrent infections, and denied having issues with his skin such as rash, itching, or dryness. However, in May 2006, he was assessed with urticaria and folliculitis. As the Board previously summarized, in October 2007 an allergist with the initials R.V. found chronic urticaria and angioedema with a delayed pressure component and noted that further testing was necessary “to look for autoantibodies to IgE specific receptor to establish the diagnosis,” and noted complaints of different rashes. The Veteran later reported that his subsequent “allergy testing and workup for lupus” were negative. See November 2017 VA examination opinion. In November 2019, following the Board’s July 2019 remand, the Veteran was provided another VA examination regarding his skin condition. This examiner stated that based on the available medical records she was “unable to determine the specific etiology of Veteran’s skin condition” as “[m]edical records do not indicate that Veteran was evaluated for skin rashes while in the military.” This examiner noted that the “Veteran reported he was exposed to several types of burning fuels from oil fires while in the military and that he “began to notice the rashes after being home for a year.” According to the October 2020 Supplemental Statement of the Case (SSOC), the RO asked for an addendum to this examination, which the examiner provided in December 2019. In this opinion the examiner stated that the Veteran’s condition was less likely than not related to his service as “[a]vailable medical records do not indicate that the Veteran was evaluated and treated for a skin condition while in the military service.” The Board finds these opinions inadequate as they ignore the evidence of in-service treatment for skin rashes and provide no additional explanation for the reported onset and etiology of the Veteran’s claimed skin condition. A bare conclusion, even one reached by a medical professional, is not probative without a factual predicate in the record. Miller v. West, 11. Vet. App. 345, 348 (1998). A medical opinion based upon an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The evidence of record shows that the RO continued to request additional medical examinations and opinions in order to comply with the Board’s July 2019 remand directives. See October 2020 SSOC. In September 2020, the Veteran received additional examination, including a Gulf War General Medical Examination, which identified the Veteran as having “recurrent rash/unspecified dermatitis,” with symptoms such as “recurrent skin rashes of the mid-sternal chest, wrists, elbows, ankles and knees with pain, itching and burning.” On the day of the examination, the Veteran presented “with red raised papular rash without drainage.” The examiner considered this condition to be a diagnosed illness for which no etiology was established. The examiner explained that the “Veteran had no issues related to the claimed skin rashes or dermatitis prior to military service” and that the “[c]urrent diagnosis of unspecified dermatitis is related to the skin rashes.” The examiner concluded that there was “evidence of chronic and recurrent rashes without a clear etiology. A nexus has been established.” Following this examination, however, in October 2020 the RO obtained yet another addendum medical opinion from a different VA examiner. This examiner’s report indicates that the etiology section of the September 2020 examination report should be disregarded as it was “made by error” and further concluded that a nexus to service had not been established in that there was no diagnosed illness for which no etiology was established. This examiner further concluded that the Veteran’s “disability pattern is [a] diagnosable chronic multisymptom illness with a partially explained etiology[,]” noting that the Veteran had previously been diagnosed with chronic urticaria, which “has a clear diagnosis and partially explained etiology.” The examiner went on to list a variety of “factors for urticaria,” which included pressure on the skin, pain medications, insects, infection, heat or cold, stress, and sunlight, but noted that the condition is “unrelated to exposure to hazards/jet fuel in SW Asia.” While this explanation identifies factors that can bring on symptoms of the condition, it does not identify the actual etiology of the Veteran’s urticaria or rule out that it began during his active service, and does not persuasively explain why the prior examiner’s conflicting conclusions were incorrect. As such, the Board finds this addendum opinion also inadequate. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Considering the evidence in a light most favorable to the Veteran, the Board finds the examination and etiology opinion of September 2020 to be most probative and most consistent with the medical and lay evidence of record. This evidence shows the Veteran’s skin condition to be a diagnosed chronic multisymptom illness without conclusive pathophysiology or etiology. VA adjudicators may rely on a medical examiner’s evaluation of whether a veteran’s condition qualifies as a diagnosed illness without conclusive pathophysiology or etiology. See Goodman v. Shulkin, 870 F.3d 1383, 1387 (Fed. Cir. 2017). The evidence also shows that the Veteran’s recurrent rashes, unspecified dermatitis and chronic urticaria became manifest to a degree of 10 percent or more not later than December 31, 2021. 38 C.F.R. § 3.317(a)(1). The Veteran’s condition could be rated analogous to urticaria in light of the functions affected, anatomical location, and symptomatology. See 38 C.F.R. § 3.317 (a)(5). Under 38 C.F.R. § 4.118, Diagnostic Code 7825, chronic urticaria warrants a 10 percent rating when it requires first line treatment (antihistamines) for control. A March 2019 VA examination report indicates that the Veteran found that Benadryl, an antihistamine, usually helped treat his skin rashes and welts. As the skin condition has required antihistamine for control, the condition has manifest to a degree of at least 10 percent under Diagnostic Code 7825. Finally, the evidence shows that the Veteran’s skin condition, which has manifested as recurrent rashes and welts, to have existed for six months or more. The Board notes that the Veteran’s skin condition was first identified in his August 2010 VA examination. 38 C.F.R. § 3.317(a)(4). Resolving all reasonable doubt in his favor, the Board finds that the Veteran served in the Southwest Asia theater of operations and his current skin condition, to include symptoms of recurrent rashes, welts, urticaria and dermatitis, is a diagnosed chronic illness without conclusive pathophysiology or etiology that has been manifest for more than six months and has required first line treatment (antihistamines) for control. For these reasons, service connection for a skin condition is warranted. 2. The claim of entitlement to service connection for left upper leg numbness. The Veteran asserts that his “limb numbness began shortly after [his] return from the Gulf in 1991” and that it has persisted to the present. He states the condition has “gotten progressively worse over the years, but doctors have not been able to diagnose a cause.” See October 2009 Application for Compensation and/or Pension. He asserts that this condition could be due to exposure to environmental hazards during his service in the Gulf War. See January 2019 Fully Developed Claim application. There is no evidence of an upper leg condition prior to the Veteran’s entry into active service, however, a November 1991 STR notes that the Veteran complained of leg pain during prolonged sitting, with posterior thigh and hip pain existing for three weeks. The medical provider noted that the Veteran “sits a lot on the job – drives a lot.” An October 1995 periodic medical examination identified no condition or complaint of left leg numbness or pain, and no complaint of sciatic symptoms, however, the Veteran’s competent lay statements indicate that his symptoms continued off and on. Following the Board’s July 2019 remand, the RO provided the Veteran VA examinations and obtained medical etiology opinions regarding his claimed condition. In December 2019, an evaluating VA examiner noted the Veteran’s in-service complaint of left thigh pain and noted that he was diagnosed with inflammation of ischial tuberosity at the time. The examiner noted that the Veteran was assessed with left leg paresthesias in July 2008. The examiner opined that it was at least as likely as not that the Veteran’s claimed condition was incurred in or caused by his active service, explaining that the “left leg numbness is reasonably related to diagnosis of degenerative changes of lumbar spine as noted on MRI in 2008.” The examiner noted her consideration of the Veteran’s 2009 lay statements that he was “subjected to constant driving and handling equipment with little shock absorption to soften blows to the spine and lower back, stating “it is my opinion that Veteran’s left leg numbness is related to degenerative changes of the lumbar spine that could have been incurred while in the military service and handling heavy, jarring equipment. A nexus has been established.” Following this examination, however, the RO obtained additional medical opinions from different VA examiners. According to a September 2020 VA examiner, the Veteran’s claimed condition was less likely than not related to his active duty, noting a 13-year gap in time between actual diagnostic identification of the nerve root irritation (which the examiner identified as the cause of the Veteran’s current symptoms) and his discharge from active service. The examiner also noted that the Veteran was not diagnosed with a chronic upper leg numbness condition during his active service. Following this examination, in October 2020, the RO obtained an addendum medical opinion from a separate VA examiner. This examiner’s report indicates that “previously provided rationale” should be disregarded and stated that it was less likely than not that the Veteran’s upper left leg numbness was related to his service. The examiner noted the Veteran to have a current diagnosis of left lower extremity sciatic nerve radiculopathy, a condition related to lumbar spine degenerative disease. The examiner noted that diagnostic studies of the Veteran’s lumbar and left lower extremity “revealed lumbar degenerative disc disease and lumbar nerve root irritation in 2008.” The examiner noted, however, that the Veteran “separated from military service in 1995, 13 years prior to studies for lumbar dysfunction.” The examiner further opined that the Veteran’s medical records did not provide enough evidence to confirm the complaint of left leg numbness during the service as his “medical records are noting left ischial tuberosity inflammation in 1991” and explaining that such a condition was “acute and does not affect the innervation of the lower extremities.” The examiner noted that she considered the Veteran’s 2009 lay statements but opined that the jarring of heavy machinery and driving to be less likely the etiology of the left lower extremity numbness as the described “activities would affect the lower extremity shortly after they occurred and the Veteran would feel abnormal signs and symptoms while he was in service [but] the medical records are silent for similar complaints.” The Board finds the December 2019 medical opinion more probative than the September and October 2020 examination opinions. The latter examiners did not address the Veteran’s lay statements that he had continued to experience numbness and pain in his left leg following service. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). The examiners failed to address other medical evidence of record showing that the Veteran sought evaluation of his symptoms prior to 2008. See e.g., May 2005, records of private provider with the initials C.G. who assessed the Veteran’s complaint of numbness in his left thigh and diagnosed Veteran with neuropathy. Consequently, the Board gives more weight to the December 2019 VA medical examination, which identified an etiological relationship between the in-service onset of the Veteran’s current symptoms and his eventual diagnostic confirmation of lumbar changes and nerve root irritation affecting his upper left leg. In sum, the Board finds that the evidence of record is at least in equipoise as to whether the Veteran’s upper left leg condition began during and is related to his active service. Resolving all reasonable doubt in his favor, the Veteran’s claim for service connection for left upper leg numbness is granted. 38 U.S.C. § 5107. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Hart, 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.