Citation Nr: 21004919 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 17-30 968 DATE: January 28, 2021 ORDER Resolving reasonable doubt in the Veteran’s favor, service connection for irritable bowel syndrome (IBS) is granted. Resolving reasonable doubt in the Veteran’s favor, service connection for atopic dermatitis (claimed as skin rashes) is granted. REMANDED Entitlement to service connection for asthma (claimed as a breathing condition) is remanded. Entitlement to service connection for a psychiatric disorder is remanded. FINDINGS OF FACT 1. The Veteran served in Saudi Arabia from November 1997 to March 1998. 2. The Veteran has a current diagnosis of IBS; he has provided reasonably credible lay evidence that his symptoms of diarrhea and abdominal distress onset after deployment in the Southwest Asia and have been recurrent since. 3. Resolving reasonable doubt in the Veteran’s favor, his atopic dermatitis was incurred in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for IBS, as a manifestation of a medically unexplained, chronic multisymptom illness, are met have been met. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 2. The criteria for entitlement to service connection for atopic dermatitis have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1992 to December 1999. This comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the transcript is associated with the claims file. 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). Service connection may also be granted on a presumptive basis for a Persian Gulf War veteran who exhibits objective indications of qualifying chronic disability, including resulting from 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 21, 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 qualifying chronic disability, 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 (2004). Notably, laypersons are competent to report objective signs of illness. A qualifying chronic disability for VA purposes is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or functional gastrointestinal disorders) that is defined by a cluster of signs or symptoms, or (C) any diagnosed illness that VA 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). 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; and (12) abnormal weight loss. 38 C.F.R. § 3.317 (b). The term ‘Persian Gulf War veteran’ means a veteran who served on active military, naval, or air service 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 refers to Iraq, Kuwait, 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). Service in Afghanistan is not considered Southwest Asia service for the purposes of presumptive service connection under 38 C.F.R. § 3.317 (a). See Cox v. McDonald, 28 Vet. App. 318 (2016). The Veteran’s service treatment records (STRs) confirm service in Saudi Arabia from November 1997 to March 1998. Accordingly, the Veteran is considered a Persian Gulf veteran under 38 C.F.R. § 3.317. The provisions of 38 U.S.C. § 1117 are potentially applicable. 1. Entitlement to service connection for IBS is granted. The Veteran was diagnosed with IBS in November 2016 and asserts that his condition is related to exposures experienced during his deployment to Southwest Asia. STRs indicate that in July 1999 the Veteran complained frequent bowel movements with soft stool. The Veteran’s bowel movements were noted as painful and occurring between three to six times per day. An assessment was made to rule out IBS and the Veteran was referred for pinworm testing of his stool. Parasitology tests in August 1999 and in September 1999 (for giardia) were negative. Post-service VA treatment records show esophagogastroduodenoscopy (EGD) results from April 2011 revealed two abnormal gallbladder studies. The Veteran was diagnosed with h. pylori infestation and chronic gastritis. In July 2011 the Veteran was seen by his VA primary care physician with complaints of diarrhea associated with nausea, chills, and occasional abdominal cramps. A February 2016 VA treatment note for pre-op lap cholecystectomy reports that the Veteran was seen for recurrent abdominal pain in the right upper quadrant with nausea. It was also noted that these symptoms were present several years ago; they occurred again two years ago; then followed by three more occurrences within the past five days, all lasting two to three hours. His diagnosis was cholelithiasis with mild cholecystitis. In November 2016 the Veteran underwent a VA examination where IBS was diagnosed. The Veteran reported that during his last year in service, he had diarrhea that occurred, often watery, three to four times per day accompanied by cramping and which continued to the present time. The examiner opined that the Veteran’s IBS was less likely than not incurred in or caused by the claimed in-service injury, event or illness; reasoning that although the Veteran claimed his diarrhea began during his last year of service, there were no entries in his STRs attesting to such. In his May 2017 addendum opinion, the same VA examiner maintained that the Veteran had IBS and explained that there was no documentation of gastrointestinal problems since the Veteran’s separation from service for 17 years and that neither IBS nor diarrhea appeared on any problem list in a primary care providers’ note. He concluded that “in the absence of any documentation of gastrointestinal problems after service” it was less likely that the Veteran’s current IBS was related to his exposure to environmental hazards in SW Asia. After review of the evidence, and resolving reasonable doubt in the Veteran’s favor, service connection for IBS is granted. The Veteran has a current diagnosis of IBS based on the November 2016 VA examination report. IBS is specifically listed as a manifestation of a medically unexplained, chronic multisymptom illness under 38 C.F.R. § 3.317 (b)(3). The evidence demonstrates that the Veteran’s IBS manifested to a compensable degree for a period of at least six months. A compensable disability rating for IBS requires frequent episodes of bowel disturbance with abdominal distress. 38 C.F.R. § 4.114, Diagnostic Code 7319. VA treatment records reflect gastrointestinal complaints after service and the Veteran has related, including during his March 2020 hearing testimony before the undersigned, that he continued to have diarrhea, abdominal cramps and other abdominal distress-related complaints after service. Resolving reasonable doubt in favor of the Veteran, service connection for IBS under § 3.317 is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for atopic dermatitis (claimed as skin rashes) is granted. The Veteran seeks service connection for a skin disability claimed as rashes. For the reasons that follow, service connection for atopic dermatitis is warranted. Beginning in November 1993 STRs indicate that the Veteran sought medical treatment for a skin rash on his arm, torso – front and back, which was assessed as an allergic reaction and treated with Benadryl. On one occasion in April 1996 and another in May 1996 the Veteran was seen for warts on his fingers. In September 1996, the Veteran complained of hives (rash) described as itchy, red, raised and spread all over; he was assessed with allergic rash and was treated with Benadryl. Then, in July 1999 the Veteran complained of irritable anus. On physical examination, excoriated skin was noted in the area of complaint and he was assessed with ‘pruritic anus; the full clinical diagnosis is illegible. He was given Bactrin ointment as treatment. Post-service VA treatment records contain multiple treatment notes – including dermatology treatment regarding the Veteran’s skin ranging from skin rash in his legs with shingles in August 2011; breakout of rashes on his hand, thigh, and hip area in November 2012; scaly lesions in January 2013; chronic pruritic rash with scarring in November 2015, followed by a diagnosis from a VA dermatologist of atopic dermatitis. A June 2013 VA examiner noted the Veteran had a diagnosis of non-specific rash with either dermatitis or eczema. The Veteran did not recall having any skin problems during service; his first recollection of any skin rash occurred around 2000 with itchy rashes on his elbows as well as his lower back. The Veteran reported that the rashes could present for months and not respond to antibiotics but lessened to some degree with topical steroids. The examiner opined that Veteran’s skin disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran had only one STR entry for skin rash which was in November 1993, which resolved and did not recur throughout his remaining six years of service. At his October 2014 RO hearing, the Veteran testified that the rashes he currently experienced presented in the exact same manner as service. He reported rashes on his back, upper thighs, arms, and above the knees. The Veteran was afforded a new VA examination in May 2017 and reported that around 1998, shortly after returning from his deployment, he developed rashes on his arms, thighs, chest, and buttocks which continued since. He shared that the rashes were inclined to develop in one area, respond to treatment and then reappear in another area. The VA examiner opined that it was at least as likely as not that the Veteran’s atopic dermatitis was the result of his exposure to environmental hazards encountered while serving in Southwest Asia. At his March 2020 Board hearing, the Veteran testified that after returning from Saudi Arabia he experienced a skin rash on his back, sides, thighs, buttocks, lower legs, forearms. He also reported that in 1993 when the first rash occurred, some jet fuel had gotten on his skin and he believed this to have precipitated the rash. The evidence regarding causal nexus is in conflict. The June 2013 VA examiner’s unfavorable opinion is afforded little probative value and as the examiner inaccurately stated that the Veteran was only treated once for a skin rash during service, in 1993. The STRs reflect additional skin complaints in 1996 and 1999. The probative and more persuasive opinion is the favorable May 2017 VA opinion. This opinion reflects that the examiner relied on a more accurate history and also considered the Veteran’s lay report regarding onset and recurrence of his skin symptoms. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran is competent to report the skin problems he noticed in service and that such were recurrent after service. Given the Veteran's testimony, his STRs, and the favorable May 2017 VA examiner’s opinion, all reasonable doubt is resolved in his favor. Service connection for atopic dermatitis is warranted. 38 U.S.C. § 5107. REASONS FOR REMAND 1. Entitlement to service connection for asthma claimed as a breathing condition is remanded. The Veteran reported that shortly after his discharge from military service, between 2000 and 2001 he received treatment for asthma at Beckley VAMC. The Veteran also reported that he received treatment from a private physician, Dr. Robie prior to 2012. Although the Veteran’s representative has stated that these records are in the claims file, neither the VA or private treatment records from Dr. Robie are in the claims file and must be obtained. 2. Entitlement to service connection for a psychiatric disorder is remanded. Remand is necessary to further develop this issue. During his October 2014 RO hearing, the Veteran testified that he had symptoms of depression such as sadness, anxiety, and difficulty coping with his day-to-day routine during service and while on deployment. The Veteran reported frequent visits with a chaplain during his deployment as a method of treatment for his depression. He testified that he did not see a medical or psychiatric professional during service. The Veteran also stated that he began receiving treatment from Dr. T. R. in 2005 through the referral of his private physician Dr. Robie. At his March 2020 Board hearing, the Veteran testified that he first received mental health treatment while stationed at the McGuire Air Force Base between 1994 and 1999. He also shared that after his discharge from service he sought treatment around 2005 or 2006 from Process Strategies. As discussed above, the private treatment records from Dr. Robie are missing. On remand, the RO should undertake development to obtain any available private treatment records from Dr. T. R.; Process Strategies private treatment records dated from 2005 to 2006; along with mental health records from McGuire Air Force Base. A remand is also necessary to obtain addendum opinions. A May 2017 VA examiner did not provide an opinion regarding the Veteran’s diagnosed psychiatric disorder and whether it was related to particulate matter posited in the current 2507 is deferred to a qualified medical provider, as this examiner is a licensed psychologist and unable to address medical related issues.” Furthermore, the examiner inaccurately stated that the Veteran first sought mental health care in May 2017 despite a February 2011 VA treatment note showing the Veteran was prescribed Wellbutrin for depression. The matters are REMANDED for the following action: 1. Obtain Beckley VA treatment records from 2000 to 2001. 2. Obtain any mental health treatment records from McGuire Air Force Base between 1994 and 1999. 3. Ask the Veteran to complete a VA Form 21-4142 for Dr. Robie, Dr. Ray, Dr. Braun, and any other relevant physician(s) who provided treatment prior to 2012, to include Process Strategies. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 4. Obtain a medical opinion from appropriate medical professionals regarding the nature and etiology of all currently diagnosed acquired psychiatric disorders. The claims file should be reviewed. a) The mental health professional should opine as to whether any current psychiatric disorder(s), to include the diagnoses of depression, cyclothymic disorder, and unspecified bipolar disorder shown in the record, at least as likely as not onset in service or is otherwise related to service. b) An appropriate medical professional should opine as to whether any current psychiatric disorder(s), to include the diagnoses of depression, cyclothymic disorder, and unspecified bipolar disorder shown in the record, at least as likely as not onset in service or is otherwise related to service and specifically exposures to particulate matter while serving in the SW Asia theater of operations Each examiner should provide a rationale that reflects consideration of the Veteran’s lay testimony. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Telamour, 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.