Citation Nr: 21073898 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 18-06 917 DATE: December 13, 2021 ORDER Entitlement to service connection for a skin disorder is granted. FINDINGS OF FACT 1. The Veteran served in the Southwest Asia theater of operations during the Persian Gulf War. 2. The evidence is at least evenly balanced as to whether the Veteran's current skin disorder is a medically unexplained chronic multi-symptom illness of unknown etiology. CONCLUSION OF LAW The criteria for service connection for a skin disorder have been met. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1985 to February 1992. This case comes to the Board from a decision issued by the Agency of Original Jurisdiction (AOJ) in September 2017. In addition to the claim for service-connected compensation for a skin disorder, this appeal once included several other claims. Except for the skin claim, all of them have now been resolved. The Board remanded this case for further development in February 2019, September 2020, and, most recently, in April 2021. Service Connection for a Skin Disorder In general, establishing service connection requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and an in-service precipitating disease, injury or event. See Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service personnel records indicate that, during the 1991 Persian Gulf War, the Veteran was deployed to the Southwest Asia theater of operations. Because of his service there, he is considered a "Persian Gulf veteran" as defined in 38 C.F.R. § 3.317(e). Subsection (a)(1) of that regulation authorizes VA to pay compensation to any Persian Gulf veteran in whom a "qualifying chronic disability" manifests to a degree of 10 percent or more on or before December 31, 2026 if the disability cannot be attributed to a known clinical diagnosis. 38 C.F.R. § 3.317(a)(2) explains that a "qualifying chronic disability" can be either an "undiagnosed illness" or a "medically unexplained chronic multisymptom illness . . ." Subsection (a)(2)(ii) defines the latter 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. Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained." In September 2016, the AOJ arranged a general Gulf War examination. The examiner's report mentions dermatitis as well as headaches and joint pain in the back, knees and lower legs. The examiner prepared a skin diseases questionnaire which described the diagnosis as "non specific dermatitis . . ." In the opinion of the nurse practitioner who prepared the report, "The Veteran has diseases with a clear and specific etiology and diagnoses." In February 2019, the Board considered the September 2016 opinion and found it inadequate, explaining, "the examiner did not provide a nexus opinion nor a rationale in any of the examinations that he performed." The Board ordered a new examination, which occurred in October 2019. Unfortunately, the next examiner's report, prepared using the VA standard Gulf War general examination questionnaire, did not mention any signs or symptoms involving the skin. For this reason, the Board issued another remand in September 2020. In December 2020, a nurse practitioner examined the Veteran's skin and completed a questionnaire indicating a diagnosis of dermatitis. In the examiner's opinion, it was less likely than not that a causal nexus existed between this disease and the Veteran's military service. At the AOJ's request, a different nurse practitioner prepared an addendum report to clarify the reasons for this conclusion. To explain why a causal nexus was unlikely, the addendum emphasized the absence of any diagnosis or treatment for dermatitis in service treatment records. The addendum further explained that dermatitis "has a clear diagnosis and partially explained etiology. Causes of dermatitis include exposure to irritants (dyes, chemicals, plants, cold or hot weather, fungus) or an autoimmune cause as in atopic dermatitis. It is not an undiagnosed illness due to exposure to environmental hazards in [Southwest] Asia." The Board's most recent remand found the rationale for the December 2020 opinion to be inadequate because, in the opinion on direct service connection, the examiner relied entirely on the absence of a diagnosis in the service treatment records. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). To correct this problem, the Board ordered yet another skin conditions examination. The AOJ arranged the requested examination in May 2021 and obtained a questionnaire and opinion from the examining physician in July 2021. Like the earlier questionnaires, the July 2021 report indicates dermatitis of the ankles bilaterally. In the examiner's opinion, it was less likely than not that dermatitis had its initial onset in service or was otherwise related to any in-service disease, injury, or event. To support this conclusion, the examiner relied on both the absence of reported complaints of dermatitis in the service treatment records and on a report of medical history form, dated December 2002, which was prepared in connection with a potential deployment as a civilian contractor for the Navy. The December 2002 form indicates that the Veteran denied a history of skin diseases. However, both the July 2021 examination questionnaire and the examiner's opinion described the Veteran's current dermatitis as a "diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology." The Veteran's representative argues that the unfavorable portion of the July 2021 medical opinion is inadequate because the examiner failed to identify an alternative cause of his current skin disorder i.e., a specific cause that is unrelated to service. An adequate examination report must include enough facts and medical information for the Board's decision to be a fully informed one. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). It is doubtful whether this duty requires the identification of a specific cause of the claimed disability in all cases. Fortunately for the Veteran, there is no need to decide whether an adequate opinion required such an identification in this case. As noted, the July 2021 opinion that the Veteran's skin disorder was a diagnosable but medically explained chronic multi-symptom illness of unknown etiology supports a decision to grant the skin claim on a presumptive basis pursuant to 38 C.F.R. § 3.317. In reaching this conclusion, the Board has the considered potentially significant medical evidence tending to indicate that the Persian Gulf presumptions may not apply. Specifically, the December 2020 examiner opined that the Veteran's dermatitis was a known clinical diagnosis. That opinion explained that, with certain kinds of dermatitis, it was possible to identify a cause. For example, atopic dermatitis can be caused by an autoimmune condition and other forms of dermatitis can result from exposure to chemicals, hot weather, or fungus. But the December 2020 examiner never identified a specific cause for the Veteran's dermatitis and, likewise, failed to indicate what kind of dermatitis the Veteran had. According to 38 C.F.R. § 3.317(a)(2) a "qualifying chronic disability" for which presumptive service connection may be granted includes not only undiagnosed illness i.e., objective signs and symptoms which are not explained by any known medical diagnosis but also medically unexplained multi-symptom illnesses, defined 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." Id. The signs or symptoms of a medically unexplained chronic multi-symptom illness include, "Signs or symptoms involving skin." 38 C.F.R. § 3.317(b)(2). The most recent VA examiner wrote that, in his opinion, the Veteran's dermatitis was unrelated to service because the December 2002 medical history report undermined the Veteran's suggestion that he first developed dermatitis in 1992. If the law did not authorize presumptive service connection for certain disabilities in Persian Gulf veterans, this analysis might justify a denial of the claim. But 38 C.F.R. § 3.317(a) authorizes service connection for a qualifying chronic disability as long as that disability became manifest in a Persian Gulf veteran not later than December 31, 2026. The Board has considered the possibility of remanding the Veteran's claim for yet another medical opinion, this time with the purpose of clarifying the type of dermatitis the Veteran has. There is, however, a duty to avoid development which can have no purpose other than to obtain evidence against the Veteran. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Moreover, the initial skin examination questionnaire, dated September 2016, described the diagnosis as non-specific dermatitis. This information favors the July 2021 examiner's opinion that the Veteran's skin disorder is a diagnosed illness of unknown etiology. In other words, the Veteran's dermatitis is a "qualifying chronic disability" for the purposes of the Persian Gulf presumption. Thus, the evidence is at least evenly balanced as to whether the Veteran, who served in the Southwest Asia theater of operations at the relevant time, has developed a qualifying chronic disability for the purpose of 38 C.F.R. § 3.317. By law, the doubt resulting from this equipoise in the evidence is resolved in the Veteran's favor. See 38 U.S.C. § 5107(b); Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("By requiring only an 'approximate balance of positive and negative evidence'... , the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding... benefits."). Accordingly, the Board will grant service connection for a skin disorder. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Nye, 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.