Citation Nr: 21063273 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 17-31 921 DATE: October 13, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for hiatal hernia with mild esophagitis (claimed as stomach problems, abdominal pain) is reopened, to this extent only the appeal is granted. New and material evidence having been received, the claim for entitlement to service connection skin rashes is reopened, to this extent only the appeal is granted. Entitlement to service connection for hiatal hernia with mild esophagitis to include as due to an undiagnosed illness and/or exposure to Gulf War environmental hazards is denied. REMANDED Entitlement to service connection for skin rashes to include as due to an undiagnosed illness and/or exposure to Gulf War environmental hazards is remanded. FINDINGS OF FACT 1. The Veteran's claim for service connection for stomach problems and skin rashes were previously denied by a July 2010 rating decision; the Veteran did not appeal the decision and documentation constituting new and material evidence was not actually or constructively received within the one-year appeal period. 2. Additional evidence received since the July 2010 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to unestablished facts necessary to substantiate the claims for service connection for stomach problems and skin rashes to include as due to an undiagnosed illness and/or exposure to Gulf War environmental hazards, and raises a reasonable possibility of substantiating the claims. 3. The Veteran did not have any complaints or diagnoses of a disability manifested by hiatal hernia with mild esophagitis during service, and the preponderance of the evidence is against a finding that there is a causal relationship between his current hiatal hernia with mild esophagitis and active service, to include as an undiagnosed illness due to service in Southwest Asia. CONCLUSIONS OF LAW 1. The July 2010 rating decision denying service connection for stomach problems and skins rashes is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.20, 19.25, 19.52, 20.1103. 2. New and material evidence has been received to reopen the Veteran's claims for service connection for stomach problems and skin rashes. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for hiatal hernia with mild esophagitis, have not been met, nor can it be presumed to be the result of an undiagnosed condition or chronic multi-symptom illness incurred due to service Southwest Asia. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1987 to March 1993 with service in Southwest Asia. The Veteran is a recipient of the Combat Action Ribbon. These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Regional Office (RO) of the Department of Veterans Affairs (VA) in September 2014. The Veteran presented testimony at a Board hearing in May 2021. A transcript of the hearing is associated with the Veteran's claims folder. 1. New and material evidence having been received, the claim for entitlement to service connection for hiatal hernia with mild esophagitis (claimed as stomach problems, abdominal pain). 2. New and material evidence having been received, the claim for entitlement to service connection skin rashes. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. A claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. "New" evidence means existing evidence not previously submitted to agency decisionmakers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. When determining whether a claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). The Veteran's claims of service connection for stomach problems and service connection for skins rashes were originally denied by a July 2010 rating decision. The RO notified the Veteran of its decision in August 2010, and of his appellate rights. The Veteran did not appeal the decision, nor was any new and material evidence actually or constructively received within a year following the decision; therefore, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 19.20, 19.25, 19.52, 20.1103. Evidence added to the record since the July 2010 rating decision includes VA treatment records, a March 2014 VA Gulf War examination report, and two March 2013 lay statements submitted by the Veteran's spouse and close friend. The lay statements indicate that after the Veteran's returned from service he began experiencing skin rashes and stomach problems, and that he continued to experience these symptoms since separation from service. This evidence is new in that it was not previously of record and it is not cumulative or redundant of the evidence of record at the time of the July 2010 rating decision. It is also material in that it relates to an unestablished fact necessary to substantiate the claim for service connection for stomach problems and skin rash, specifically, the possibility that the Veteran may have had these two disability since separation from service. Since the evidence is both new and material, the claims of service connection for stomach problems and skin rashes are reopened. Service Connection 3. Entitlement to service connection for hiatal hernia with mild esophagitis (claimed as stomach problems, abdominal pain). The Veteran seeks service connection for a hiatal hernia with mild esophagitis. He asserts that this disability is related to his service in Southeast Asia. Specifically, he testified that his issues are due environmental hazards encountered during his service in Iraq. He has also reported that his exposure to contaminated water at Camp Lejeune caused his hiatal hernia with mild esophagitis. 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). Pursuant to 38 U.S.C. § 1117, "a Persian Gulf Veteran with a qualifying chronic disability," that manifests to a degree of 10 percent or more before December 31, 2021," may be entitled to compensation. 38 U.S.C. § 1117 (a)(1); 38 C.F.R. § 3.317 (a)(1). Under 38 C.F.R. § 3.317 (d)(1) the term "Persian Gulf 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. 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 (d)(2). The Persian Gulf does not include service in Afghanistan, except for service connection for infectious diseases as to service in Afghanistan on or after September 19, 2001. 38 C.F.R. § 3.317 (c)(3)(ii). There are four avenues for finding that a chronic disability may qualify for presumptive service connection pursuant to § 1117. Qualifying chronic disabilities include those that result from (1) "[a]ny diagnosed illness that the Secretary determines in regulations... warrants a presumption of service connection"; (2) an infectious disease listed at 38 C.F.R. § 3.317 (c)(2); (3) "[a]n undiagnosed illness," and (4) "[a] medically unexplained chronic multi symptom illness (such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders, to include irritable bowel syndrome) that is defined by a cluster of signs or symptoms." 38 U.S.C. § 1117 (a)(2)(A), (B), (C); 38 C.F.R. § 3.317 (a)(2)(i)(B). V 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, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Further, lay persons are competent to report objective signs of illness. Gutierrez v. Principi, 19 Vet. App. 1 (2004). VA has defined a medically unexplained chronic multi symptom illness as "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." 38 C.F.R. § 3.317 (a)(2)(ii). Along with the three examples of a medically unexplained chronic multi symptom illness provided by § 1117(a)(2)(B), Congress has provided a list of signs or symptoms that may be a manifestation of a medically unexplained chronic multi symptom illness that includes: skin symptoms, headaches, muscle pain, joint pain, neurologic symptoms, neuropsychological symptoms, respiratory system symptoms, sleep disturbances, gastrointestinal symptoms, cardiovascular symptoms, and abnormal weight loss. See 38 U.S.C. § 111 (g); 38 C.F.R. § 3.317 (b). A review of the Veteran's service treatment records shows no diagnosis of a hiatal hernia with mild esophagitis or stomach issues. Post-service, a January 2009 private treatment record show that the Veteran was treated for vomiting blood and stomach pain. A November 2009 private treatment record shows that the Veteran reported abdominal pain which caused him to throw up and eat less than normal. A November 2012 private treatment record shows that the Veteran was treated for abdominal pain. A March 2014 Gulf War medical examination Disability Benefits Questionnaire (DBQ) shows that the examiner did not identify any diagnosed illnesses for which no etiology was established regarding the hiatal hernia with mild esophagitis disability. The examiner reported that the only documented diagnosis which appears (by Veteran's history) to cause recurrent symptoms of stomach issues was identified as hiatal hernia with mild esophagitis, diagnosed many years after the service and never documented while in the military. The examiner remarked as per the Veteran's history and examination, there was no evidence of Gulf War Syndrome or any disability related to a specific exposure event experienced by the Veteran during his military service in Southwest Asia. Statements submitted by the Veteran's friend and spouse in March 2014 reported that he had delt with a stomach condition since separation from service. Initially, the Veteran's symptoms have been attributed to a known diagnosis, and there is no symptomatology that is not attributable to a known diagnosis. Additionally, a hiatal hernia with mild esophagitis is not one of the disabilities listed at 38 C.F.R. § 3.317(c)(2). As such, the Gulf War presumption does not apply in this case. Nevertheless, the Veteran may be entitled to service connection on a direct basis. As noted above, the Veteran has been diagnosed with a current disability noted as hiatal hernia with mild esophagitis. During the hearing, the Veteran testified that he believed this condition was caused exposure to Gulf War environmental hazards in Southwest Asia. The Veteran reported that he has continued to experience symptoms affecting his stomach since separation from service to the present day. While cognizant of the Veteran's, his spouse's, and friend's statements that his stomach symptoms had their onset during service and have continued to the present, the Board finds that the contemporaneous evidence of record is more reliable than the Veteran's statements. As noted by the VA examiner, the Veteran was not treated for or reported any in-service symptoms and specially denied such symptoms of reports of medical history completed in 1991 and 1993. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than subsequently reported history). Such self-reports suggest that the Veteran did not experience ongoing symptoms. If the Veteran had been experiencing such symptoms, they would have been documented at this time as the report of medical history documents the Veteran's complaints for other issues. Post- service, the only private treatment records identified and associated with the claims file shows that the Veteran was treated for stomach issues in January 2009 more than 15 years after separation from service. Moreover, during treatment in January 2009 the Veteran did not report that these symptoms had been ongoing since separation from service but instead, reported that the condition had been ongoing for one year which would be in 2008, which is still many years after separation from service. Although the absence of documented treatment alone cannot serve as a basis for finding that lay evidence lacks credibility, Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006), the Board finds in this case that the lack of evidence coupled with the service treatment records, are sufficient to rebut a finding of service incurrence and continuing symptoms since separation from service. See Horn v. Shinseki, 25 Vet. App. 231, 240 n.7 (2012). Further, the Veteran reported that the condition had been ongoing for one year when he sought treatment for the stomach problems in January 2009. The statement made to a provider in the course of treatment is afforded probative weight and is exceptionally trustworthy because the Veteran has a strong motive to tell the truth in order to receive the proper diagnosis or treatment. See White v. Illinois, 502 U.S. 346, 355-56 (1991); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing, that, although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence, to include Rule 803(4), may be appropriate). After a review of the record, the Board finds that the preponderance of the evidence is against the claim of service connection for hiatal hernia with mild esophagitis. The Veteran is currently diagnosed with hiatal hernia with mild esophagitis, a known clinical diagnosis and not an "undiagnosed illness." However, there is no competent and credible evidence linking the Veteran's hiatal hernia with mild esophagitis to service. The only competent opinions of record addressing the relationship between the current condition and service are those of the VA examiners, and such opinions are against the claim. While the Veteran contends that his hiatal hernia with mild esophagitis is related to his military service, there is no indication that he has specialized training in diagnosing such a disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 77 (Fed. Cir. 2007). In this regard, the diagnosis of a gastrointestinal disability requires medical testing and training to identify. Thus, the Veteran's lay opinion as to the diagnosis or etiology of his claimed disability is not competent evidence and is assigned less probative weight. Further, the Veteran's statements of ongoing symptoms which began during service have been found to be not credible in light of the contemporaneous evidence of record which indicates otherwise. As noted above, the Veteran also alleges that his hiatal hernia with mild esophagitis is the result of drinking contaminated water at Camp Lejeune, North Carolina. In order to establish presumptive service connection for a disease associated with exposure to contaminated water at Camp Lejeune, a veteran, former reservist, or member of the National Guard must show the following: (1) that he or she served at Camp Lejeune for no less than 30 days (either consecutive or nonconsecutive) from August 1, 1953 to December 31, 1987; (2) that he or she currently suffers from a disease associated with exposure to contaminants in the water supply at Camp Lejeune enumerated under 38 C.F.R. § 3.309 (f); and (3) that the current disease process manifested to a degree of 10 percent or more at any time after service. 38 C.F.R. §§ 3.307 (a)(7), 3.309 (f). However, service personnel records establish that the Veteran was not stationed at Camp Lejeune until 1988, which is outside the dates specified for the period of contamination. Accordingly, service connection cannot be considered under these provisions. The preponderance of the evidence is against the claim of service connection; there is no doubt to be resolved, and service connection for hiatal hernia with mild esophagitis is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). REASONS FOR REMAND 1. Entitlement to service connection for skin rashes to include as due to an undiagnosed illness and/or exposure to Gulf War environmental hazards is remanded. The Veteran is seeking service connection for a skin condition which he has identified as eczema. He asserts that the skin condition was caused by an undiagnosed illness and/or exposure to Gulf War environmental hazards. A review of the Veteran's service treatment records shows no treatments or diagnosis for skin conditions. A March 2014 VA examination report showed that the Veteran did not have any visible skin condition. The examiner noted that the Veteran reported skin rashes affecting his arms in legs in 1993, although there was no documentation noted in the claims file. The examiner noted that the Veteran has eczema by history, but no signs or symptoms were noted on the examination. Statements submitted by the Veteran's friend and spouse in March 2014 reported that he had delt with a skin condition since separation from service. Private treatment records from 2009, 2011, 2012, and 2014 do not show that the Veteran was diagnosed with or reported any skin rash conditions. A review of VA treatment records also shows no reported or diagnosis of skin conditions. In this case, the Veteran does not have a current diagnosis of a skin disability. Additionally, the medical evidence of record does not show any reported skin conditions. However, the lay statements of record assert that the Veteran has had skin problems since service. As noted above, lay persons are competent to report objective signs of illness. Gutierrez v. Principi, 19 Vet. App. 1 (2004). Additionally, the medical opinion does not address whether these symptoms can be attributed to a known clinical diagnosis, a chronic disability resulting from an undiagnosed illness, or a medically unexplained chronic multi symptom illness. As such, the Board finds that a remand is necessary to determine the nature and etiology of the reported symptoms. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the VA examiner who performed the March 2014 examination or an appropriate medical professional if the examiner is unavailable. The claims file, as updated, must be made available to and reviewed by the examiner. Based on the record, the examiner should provide a response to the following: 1) Are the Veteran's reported skin symptoms due to a known clinical diagnosis? 2) If not, are the Veteran's reported skin symptoms an objective indication of chronic disability resulting from an undiagnosed illness? 3) If not, are the Veteran's reported skin symptoms an objective indication of chronic disability resulting from a medically unexplained chronic multi symptom illness? The examiner should conduct all necessary diagnostic tests and studies prior to responding to the questions above. The examiner should also address the lay reports of skin symptoms since the Veteran's separation from service. All opinions must be supported with explanation. D. SMART Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dworkin, 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.