Citation Nr: 21013364 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 15-00 547 DATE: March 9, 2021 ORDER Entitlement to service connection hyperhidrosis (claimed as sweating spells) is granted. FINDING OF FACT 1. The Veteran had active service in the Southwest Asia theater of operations during the Persian Gulf War. 2. The Veteran’s hyperhidrosis manifested to a compensable degree after his separation from service and is not attributable to incurrent causes. CONCLUSION OF LAW The criteria for service connection for hyperhidrosis have been met. 38 U.S.C. §§ 1110, 1117; 38 C.F.R. §§ 3.303, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from July 1968 to August 1977 and from July 1981 to May 1992, to include service in the Republic of Vietnam and the Persian Gulf War. This case is before the Board of Veterans’ Appeals (Board) on appeal from a May 2019 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veteran’s Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). This case was previously before the Board in September 2019 when it was remanded for further development. In April 2019, the Veteran provided testimony in support of the appeal at a Board hearing conducted by the undersigned Veterans Law Judge (VLJ) via videoconferencing equipment. A transcript of that hearing is associated with the file. Entitlement to service connection for hyperhidrosis (claimed as sweating spells) 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 requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection may also be granted on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of a 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 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 qualifying chronic disability, unlike those for “direct service connection,” there is no requirement that there be competent evidence of a nexus between the illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Notably, laypersons are competent to report objective signs of illness. To determine whether the undiagnosed 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). A “qualifying chronic disability” for purposes of 38 U.S.C. § 1117 is a chronic disability resulting from (1) an undiagnosed illness, (2) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (3) 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), (c). As an initial matter, the diseases for which the Secretary has established a presumption under (3) are all infectious in nature. The Veteran does not allege, and the record does not suggest, that he has any of the listed diseases. 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). Effective July 13, 2010, VA amended its adjudication regulations governing presumptions for certain Persian Gulf War Veterans. Such revisions amend § 3.317(a)(2)(i)(B) to clarify that chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome are examples of what are identified as medically unexplained chronic multisymptom illnesses and are not an exclusive list of such illnesses. Additionally, the amendment removes § 3.317(a)(2)(i)(B)(4), which reserves to the Secretary the authority to determine whether additional illnesses are “medically unexplained chronic multisymptom illnesses” as defined in paragraph (a)(2)(ii) so that VA adjudicators will have the authority to determine on a case-by-case basis whether additional diseases meet the criteria of paragraph (a)(2)(ii). These amendments are applicable to claims pending before VA on October 7, 2010, and claims filed with or remanded to VA after that date. See 75 Fed. Reg. 61, 997 (Oct. 7, 2010). Compensation under 38 U.S.C. § 1117 shall not be paid if: (1) there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; (2) 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) there is affirmative evidence that the illness is the result of the Veteran’s own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau, supra. Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). Competent medical evidence is the type of evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale and a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). Competent lay evidence is any kind of evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Lastly, in order to deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis Entitlement to service connection for hyperhidrosis has been advance under several theories of entitlement, including as presumptive due to exposure to herbicide agents in the Republic of Vietnam. As service connection will be granted through the Persian Gulf War presumption, the other theories will not be discussed. The Veteran’s DD-214 includes documentation that the Veteran served the Southwest Theater of Operations through April 1991. He therefore has service to qualify for the presumption as a Persian Gulf War Veteran. The Veteran contends that he began to have sweating spells a couple years after he was separated from service, in about 1995. The sweating spells have been documented in the Veteran’s medical treatment record since July 2000. A VA medical examiner diagnosed the Veteran’s sweating spells as hyperhidrosis in July 2020. The Veteran’s hyperhidrosis qualifies as a chronic, medical unexplained multisymptom illness for purposes of 38 U.S.C. § 1117. The July 2020 VA examination in which the Veteran’s sweating spells were diagnosed as hyperhidrosis, included a notation that the etiology of the hyperhidrosis is unknown. To fulfill the requirement of chronicity for the presumption to apply, the illness must have persisted for a period of six months. The Veteran’s disability has persisted since around 1995 and has been consistently documented in the Veteran’s medical records since July 2000. Objective indications of a chronic disability for the presumption includes symptoms such as fatigue, signs or symptoms involving skin, muscle pain, and joint pain among others. 38 C.F.R. § 3.317(b). The Veteran has a symptom involving the skin, hyperhidrosis, and documented complaints of fatigue, sore muscles and swelling of his finger, specifically noted in a February 2012 medical treatment record. Therefore, the Veteran has a chronic, medically unexplained illness, subject to the presumption for Persian Gulf War Veterans. For the presumption to apply, the Veteran’s hyperhidrosis must be able to be rated at a compensable degree by December 31, 2021. 38 C.F.R. § 3.317(a)(1)(i). Hyperhidrosis is rated under Diagnostic Code (DC) 7832. DC 7832 includes a rating of 0 percent for: able to handle paper or towels after therapy. A total rating for DC 7832 is 30 percent for: unable to handle paper or tools because of moisture, and unresponsive to therapy. 38 C.F.R. § 4.118. The Board recognizes that the Diagnostic Code used for rating hyperhidrosis refers to the ability to handle paper or tools, and most people do not use their head to use paper or tools. However, levels of severity of symptoms can be compared. During the April 2019 hearing the Veteran described his symptoms as sudden sweat pouring from his head, even when in an air-conditioned room. In a July 2020 VA examination the Veteran described the sweat as water running, for which he needs a towel to deal with. Finally, the Veteran stated that there is nothing that can be done to alleviate the sweating spells, although it is noted that he is on a prescription for hydrazine for sleep, anxiety, and sweats. It is reasonable that the extent of the Veteran’s sweat on his head is consisted with a 30 percent rating, as if the symptoms were experienced on the Veteran’s hands, he would be unable to hold paper or tools. Although a medical nexus is not needed to grant service connection, as the Veteran satisfies the requirements for a presumption of a Persian Gulf War Veteran, medical opinions were obtained for the Veteran’s sweating spells, one in July 2020 and a second in January 2021. The July 2020 VA examiner opined that the Veteran’s hyperhidrosis was at least as likely as not incurred in or caused by the Veteran’s service in the Gulf War, as the Veteran’s hyperhidrosis is a skin condition that is considered an illness of the Gulf War. The examiner further elaborated that although hyperhidrosis is diagnosable, it is a medically unexplained chronic multisymptom illness of unknown etiology. Although the July 2020 examiner concluded that the Veteran’s hyperhidrosis is at least as likely as not incurred in or caused by the Veteran’s service in the Gulf War, the examiner indicated on a Gulf War Medical Examination, on the same date as the positive nexus opinion, that the Veteran did not have a diagnosis with an unknown etiology. This examiner’s positive nexus opinion was more adequate and specifically addressed the Veteran’s contentions, whereas the negative opinion only addressed whether the hyperhidrosis had a known etiology and did not adequately expand on what the etiology is. Therefore, the adequate, positive opinion is given greater probative value than the inadequate negative opinion. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). The Veteran was also provided another VA medical examination in January 2021. The January 2021 examiner provided a negative nexus opinion. However, the examiner did note that the Veteran has had an extensive work-up for the diagnosed hyperhidrosis without a clear etiology. The examiner provided a negative nexus opinion based on herbicide exposure, which is not necessary as the Veteran can be granted service connection for his hyperhidrosis through the Gulf War presumption. As such, the January 2021 medical opinion is given no probative value. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). In summary, the Board finds the Veteran to have established manifestation of his hyperhidrosis, a chronic medically unexplained multisymptom illness to a compensable degree of 10 percent or more after service. As a qualifying chronic disability for purposes of 38 U.S.C. § 1117 disability, entitlement to service connection for the Veteran's hyperhidrosis is therefore warranted. 38 C.F.R. § 3.317(a)(6). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. W. Morgan, 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.