Citation Nr: 21015569 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 17-20 786 DATE: March 17, 2021 ORDER Service connection for fibromyalgia is denied. Service connection for chronic fatigue syndrome is denied. Service connection for irritable bowel syndrome is denied. Service connection for post-traumatic stress disorder (PTSD) is granted. Service connection for pseudofolliculitis barbae is granted. REMANDED Entitlement to service connection for bilateral pes planus is remanded. FINDINGS OF FACT 1. The Veteran had active service in the Southwest Asia theater of military operations (SWA) during the Persian Gulf War. 2. The Veteran does not have an undiagnosed illness or a medically unexplained chronic multi-symptom illness such as fibromyalgia; he has not been diagnosed with fibromyalgia; no widespread or generalized joint and muscle condition is diagnosed. 3. The Veteran does not have an undiagnosed illness or a medically unexplained chronic multi-symptom illness such as chronic fatigue syndrome; he has not been diagnosed with chronic fatigue syndrome; no generalized fatigue is diagnosed. 4. The Veteran does not have an undiagnosed illness or a medically unexplained chronic multi-symptom illness such as irritable bowel syndrome; he has not been diagnosed with irritable bowel syndrome; no functional gastrointestinal disorder, including gastrointestinal signs or symptoms, is diagnosed. 5. The Veteran has a diagnosis of PTSD that conforms to regulatory requirements. 6. Currently diagnosed pseudofolliculitis barbae had its onset in active duty service. CONCLUSIONS OF LAW 1. Fibromyalgia, to include as a disability due to undiagnosed illness or a qualifying chronic disability, was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.317. 2. Chronic fatigue syndrome, to include as a disability due to undiagnosed illness or a qualifying chronic disability, was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.317. 3. Irritable bowel syndrome, to include as a disability due to undiagnosed illness or a qualifying chronic disability, was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.317. 4. PTSD was incurred in wartime service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 5. The criteria for service connection of pseudofolliculitis barbae are 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 in the United States Army from February 2009 to April 2011, to include service in Iraq; and his decorations include the Iraq Campaign Medal with Campaign Star. He timely appealed these matters from February 2015 and December 2015 rating decisions. In July 2019, a Decision Review Officer granted service connection for left knee disability and for right knee disability, and assigned separate 10 percent evaluations for each knee disability under Diagnostic Code 5260, effective from August 19, 2015. As the record reflects no disagreement with either the initial ratings or effective dates assigned, it appears that the RO’s grant of service connection for each knee disability has resolved those matters. In January 2021, the Veteran testified before the undersigned at a virtual hearing. All available records identified by the Veteran as relating to each of his claims decided below have been obtained, to the extent possible. The record does not otherwise indicate any existing pertinent evidence that has not been obtained. Examination reports and opinions are thorough and adequate for the Board to render the following decisions in the Veteran’s appeal. 38 U.S.C. § 5103A(a)(2). Service Connection Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection on a direct basis, the record must contain competent evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability that are subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Some chronic diseases, such as psychoses and scleroderma, may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). The applicable presumptive period is one year from separation. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Specific to Persian Gulf War service, service connection may be granted for objective indications of a chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms—to include fatigue, signs and symptoms involving skin, muscle pain, joint pain, and gastrointestinal signs or symptoms; or by a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome or fibromyalgia or functional gastrointestinal disorders. The chronic disability must have become manifest either during active military, naval, or air service in the Southwest Asia theater of military operations during the Persian Gulf War, or to a degree of 10 percent or more disabling not later than December 31, 2021; and must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. In this case, the Veteran was presumed sound at service entry. Clinical evaluation prior to entry in December 2008 was normal, except for a right knee surgical scar; and no disability was recorded. The Veteran’s right knee surgery, with no restrictions, was noted; nor is there medical evidence of any other disability prior to active service. The Board is within its province to make a determination as to whether the evidence supports a finding of service incurrence. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Fibromyalgia The Veteran clarified at his January 2021 hearing that he does not have widespread pain, and that his whole body does not ache. He reported having daily low back pain, as well as some knee and foot pain. The evidence does not show that fibromyalgia or any generalized musculoskeletal condition had its onset in active service. No examiner has found objective evidence or pathology which would support a diagnosis of fibromyalgia. The Board has considered the Veteran’s testimony regarding no widespread pain. There is no formal diagnosis of any medically unexplained chronic multi-symptom illness such as fibromyalgia. While the Veteran is competent to report symptoms, he is not competent to provide a diagnosis of a current disability or to link such to active service, as this is beyond the capacity of a lay person to observe. The Veteran completed a “Post-Deployment Health Assessment” in July 2010. He responded that he neither sought treatment, nor was placed on quarters or given limited duty, nor was still bothered by symptoms of generally feeling weak; by muscle aches; by swollen or stiff or painful joints; or by back pain. Fibromyalgia was not demonstrated in active service. Here, the evidence does not show that fibromyalgia had its onset in active service. As such, he is not entitled to direct service connection. VA examination in December 2015 revealed neither a diagnosed illness with no etiology, nor signs nor symptoms representing a medically unexplained chronic multi-symptom illness such as fibromyalgia. Examination revealed full ranges of motion of the back and no pain. There was no functional impairment. Physical examination was normal. In the absence of evidence of current disability, service connection cannot be awarded. The Board has considered whether the Veteran’s muscle pain and joint pain may be considered a disability in and of itself, but finds it may not. Pain alone, without any functional impairment or underlying diagnosis, is not a service-connectable disability. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), vacated in part, dismissed in part by Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Pain has been recognized as a potential disability in Saunders v. Wilkie, 886 F. 3d 1356, 1367-1368 (Fed. Cir. 2018), but only where there is impaired function affecting earning capacity. Here, in addition to no showing of pathology, there is no showing of impairment. Additionally, muscle pain and joint pain did not manifest to a degree of 10 percent or more disabling at any time since the Veteran’s active service in SWA. His report of muscle pain and joint pain, even if credible, would not be compensable. Specifically, the evidence does not reveal that continuous medication was required for control of muscle pain and joint pain. Hence, the Veteran has not exhibited symptomatology of a compensable nature involving muscle pain and joint pain that would warrant a finding of undiagnosed illness. In short, the evidence weighs against granting service connection for fibromyalgia. The benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Chronic Fatigue Syndrome The Veteran clarified at his January 2021 hearing that he became fatigued during the day and had to drink energy drinks. He testified that he was still tired, even when he got sleep. He takes medication to help him sleep. The evidence does not show that chronic fatigue syndrome or any fatigue had its onset in active service. No examiner has found objective evidence or pathology which would support a diagnosis of chronic fatigue syndrome. The Board has considered the Veteran’s testimony regarding fatigue. There is no formal diagnosis of any medically unexplained chronic multi-symptom illness such as chronic fatigue syndrome. While the Veteran is competent to report symptoms, he is not competent to provide a diagnosis of a current disability or to link such to active service, as this is beyond the capacity of a lay person to observe. The Veteran completed a “Post-Deployment Health Assessment” in July 2010. He responded that he neither sought treatment, nor was placed on quarters or given limited duty, nor was still bothered by problems sleeping or still feeling tired after sleeping. Chronic fatigue syndrome was not demonstrated in active service. Here, the evidence does not show that chronic fatigue syndrome had its onset in active service. As such, he is not entitled to direct service connection. VA examination in December 2015 revealed neither a diagnosed illness with no etiology, nor signs nor symptoms representing a medically unexplained chronic multi-symptom illness such as chronic fatigue syndrome. Physical examination was normal. In the absence of evidence of current disability, service connection cannot be awarded. The Board has considered whether the Veteran’s fatigue may be considered a disability in and of itself, but finds it may not. Examination revealed no symptoms restricting routine daily activities, and no symptoms resulting in functional impairment. Here, in addition to no showing of pathology, there is no showing of impairment. Additionally, fatigue did not manifest to a degree of 10 percent or more disabling at any time since the Veteran’s active service in SWA. His report of fatigue, even if credible, would not be compensable. Specifically, the evidence does not reveal fatigue resulting in periods of incapacitation of at least one week during any year, or that fatigue required continuous medication for control. Hence, the Veteran has not exhibited symptomatology of a compensable nature involving fatigue that would warrant a finding of undiagnosed illness. In short, the evidence weighs against granting service connection for chronic fatigue syndrome. The benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56. Irritable Bowel Syndrome The Veteran clarified at his January 2021 hearing that, depending on what he ate, he sometimes experienced constipation. He testified that he had not been diagnosed with irritable bowel syndrome or with any condition affecting the bowels. Nor had he been diagnosed with chronic constipation. The evidence does not show that irritable bowel syndrome or any gastrointestinal signs or symptoms had their onset in active service. No examiner has found objective evidence or pathology which would support a diagnosis of irritable bowel syndrome. The Board has considered the Veteran’s testimony regarding constipation. There is no formal diagnosis of any medically unexplained chronic multi-symptom illness such as irritable bowel syndrome. While the Veteran is competent to report symptoms, he is not competent to provide a diagnosis of a current disability or to link such to active service, as this is beyond the capacity of a lay person to observe. The Veteran completed a “Post-Deployment Health Assessment” in July 2010. He responded that he neither sought treatment, nor was placed on quarters or given limited duty, nor was still bothered by symptoms of diarrhea or by frequent indigestion or heartburn. Irritable bowel syndrome was not demonstrated in active service. Here, the evidence does not show that irritable bowel syndrome had its onset in active service. As such, he is not entitled to direct service connection. VA examination in November 2015 revealed neither a diagnosed illness with no etiology, nor signs nor symptoms representing a medically unexplained chronic multi-symptom illness such as irritable bowel syndrome. The Veteran reported having a bowel movement almost every day, which was normal. He denied diarrhea, abdomen pain, constipation, bloating, blooding in stool, and excessive gas. Physical examination was normal. In the absence of evidence of current disability, service connection cannot be awarded. The Board has considered whether the Veteran’s gastrointestinal signs or symptoms may be considered a disability in and of itself, but finds it may not. Examination revealed no physical findings or functional impact. Here, in addition to no showing of pathology, there is no showing of impairment. Additionally, gastrointestinal signs and symptoms did not manifest to a degree of 10 percent or more disabling at any time since the Veteran’s active service in SWA. His report of constipation at times, even if credible, would not be compensable. Specifically, the evidence does not reveal moderate symptoms or frequent episodes of bowel disturbance with abdominal distress. Hence, the Veteran has not exhibited symptomatology of a compensable nature involving gastrointestinal signs and symptoms that would warrant a finding of undiagnosed illness. In short, the evidence weighs against granting service connection for irritable bowel syndrome. The benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56. PTSD The Veteran clarified at his January 2021 hearing that he was diagnosed with PTSD, and that he took medication for PTSD symptoms. He also described two in-service stressors. One stressor pertained to the death of his childhood friend, who was blown up from stepping on an improvised explosive device in Afghanistan. This loss affected the Veteran personally, where he reportedly had isolated himself from others. The second stressor pertained to incoming mortar rounds in Iraq on multiple occasions. One day there were over 20 bombs, which were not far from the Veteran’s location; and the Veteran reportedly was in constant fear for his life. His Form DD 214 reflects receipt of the Global War on Terrorism Service Medal, among other awards, which indicates he was in a theater of combat operations. The Board finds credible, competent and probative the Veteran’s testimony of incoming mortar rounds in Iraq during active service. The in-service events are consistent with the places, types, and circumstances of the Veteran’s service. At least one of the in-service stressors described by the Veteran in Iraq involved his fear of hostile military or terrorist activity, and the other stressor involved a personal loss of a childhood friend during active service. Here, an April 2015 examiner, who is a VA physician, found that the Veteran’s symptoms did not meet diagnostic criteria for PTSD under DSM-5. Rather, the examiner opined that the Veteran’s anxiety disorder was at least as likely as not related to an in-service event. The examiner reasoned that the Veteran’s reported chronic anxiety and rumination leading to sleep difficulties related to complicated grief and safety concerns following the death of his friend. Service connection has been awarded for bipolar disorder, which previously was evaluated as anxiety disorder. It does not appear that the April 2015 examiner gave much consideration at the time to the Veteran’s in-service stressor of incoming mortar rounds. VA records first show an assessment of PTSD in January 2016. A VA physician in April 2017 noted that the Veteran had a history of exposure to traumatic events during his deployment to Iraq; and that he finally was diagnosed with PTSD, after a lengthy period of sobriety from cannabis. The April 2017 VA physician opined that the Veteran’s symptoms, more likely than not, are related and stemming from exposure to traumatic events experienced during active service; and that the Veteran’s symptoms continue to meet DSM-5 criteria for a diagnosis of PTSD. Here, there are conflicting medical opinions. The April 2015 VA physician opined that the criteria for a diagnosis of PTSD under DSM-5 were not met. The Board finds this opinion to have minimal probative value because adequate consideration was not given to the in-service stressor of incoming mortar rounds. To the contrary, the April 2017 VA physician considered such stressors as a history of traumatic events, and related current PTSD symptoms to traumatic events during the Veteran’s active service. The Board finds the April 2017 VA physician’s opinion persuasive. Notably, the Veteran’s credible statements support this determination. The April 2017 VA physician found that current PTSD symptoms meet DSM-5 criteria. When considering all in-service stressors, the competent and credible lay statements, as well as the April 2017 VA physician’s favorable opinion; and resolving all reasonable doubt in his favor, the Board finds that regulatory criteria for awarding service connection for PTSD are met. Hence, the diagnosis of PTSD related to traumatic exposures in Iraq is valid, and service connection is warranted. See 38 C.F.R. § 3.102. Skin Disability The Veteran clarified at his January 2021 hearing that he had a recurring skin rash on his right side and towards front trunk, which was located near his belt line. He also testified that he had a shaving profile in active service, and that he now wore a beard and no longer had to shave. Service treatment records, dated in June 2010, show that the Veteran complained of nodules on left side of his face for four months; and that one nodule was very painful, and another lateral to his jaw made it difficult to eat. Following examination, the assessment was acne cystic and topical creams were applied. The Veteran completed a “Post-Deployment Health Assessment” in July 2010. He responded that he neither sought treatment, nor was placed on quarters or given limited duty, nor was still bothered by symptoms of skin diseases or rashes. In September 2010, the Veteran reported no relief with the topical creams he applied. Examination at the time showed redness and cysts under skin over cheeks. The Veteran underwent excision surgery later that same month. Service connection has been awarded for epidermal inclusion cyst of right cheek. There is no diagnosis of pseudofolliculitis barbae in active service. The June 2012 VA examination report includes diagnoses and dates of diagnoses as pseudofolliculitis barbae, 2011; and epidermal inclusion cyst, 2011. The Veteran reported that the bump in right cheek was excised in service, but had recurred. The examiner noted that pseudofolliculitis of face and neck will leave small scars from infected pustules, and there was a small scar from the epidermal inclusion cyst. No systemic manifestations were noted. VA records show treatment for complaints of painful bumps on back of neck in September 2013. The Veteran reported that he shaved his hair, after which bumps started. Examination revealed multiple papules and pustules on posterior hair line of neck with full ranges of motion and no rigidity. The assessment was folliculitis, and medication was prescribed for treatment. The Veteran underwent another VA examination in November 2015, and was diagnosed with pseudofolliculitis barbae; the date of diagnosis was unknown. His medical history revealed that he broke out in bumps after shaving, which started in active service. He reportedly was given a shaving profile. Current examination revealed no visible skin condition. The examiner did note mild papules in beard area without pustula, described as pseudofolliculitis barbae; and noted that exposed area and total body area were less than 5 percent affected. Following examination in November 2015, the examiner opined that a claimed skin disability was less likely than not incurred in or caused by in-service injury, event, or illness. In support of the opinion, the examiner reasoned that there are no records or documentation of pseudofolliculitis barbae in the Veteran’s claims file; that pseudofolliculitis barbae is not an undiagnosed illness; and that pseudofolliculitis barbae is a foreign-body inflammatory reaction surrounding ingrown facial hair, which resulted from shaving and occurred more commonly in people who have curly hair. The May 2017 VA examination report includes a diagnosis of folliculitis and date of diagnosis as unknown. The Veteran’s medical history included complaints of bumps on back, chest, and right side of face that come and go. Following examination, the examiner opined that a claimed skin disability was less likely than not incurred in or caused by in-service injury, event, or illness. In support of the opinion, the examiner reasoned that folliculitis is caused by an infection of hair follicles; and may also be caused by viruses, fungi, and even an inflammation from ingrown hairs. There is no acne noted on this examination; and pseudofolliculitis barbae is a separate dermatological disorder, and was not caused or a result of acne cystic in service. Nor is pseudofolliculitis barbae an undiagnosed illness. VA records show assessments of actinic keratosis, seborrheic keratosis, and skin tags in August 2017; and assessments of eczema and early lichen simplex chronicus in August 2018. In this case, given the diagnosis of pseudofolliculitis barbae, the disability cannot be considered an undiagnosed illness or a qualifying chronic disability for entitlement to service connection based on the Veteran’s service in the Persian Gulf. Specifically, no examiner has attributed the Veteran’s signs and symptoms involving skin to environmental exposure in active service. Nor is pseudofolliculitis barbae defined as a cluster of signs or symptoms or considered to be a medically unexplained chronic multi-symptom illness. Here, the Board acknowledges the November 2015 and May 2017 VA opinions, in which examiners reasoned that pseudofolliculitis barbae was not noted in active service. However, both examiners failed to acknowledge the Veteran’s report of longstanding recurring symptoms of pseudofolliculitis barbae, first diagnosed shortly after service in 2011. Based on evidence of acne cystic in active service and evidence that the Veteran underwent excision of a painful cyst in his cheek in active service, it is reasonable to infer he was given a shaving profile in active service. Moreover, given the nature of recurrent skin disease, the Veteran’s complaints of bumps on his face both during and after service, and evidence of current pseudofolliculitis barbae, the Board finds that the Veteran’s pseudofolliculitis barbae had its onset in active service. Such is consistent with the Veteran’s reports of self-treatment and symptomatology, as well as documented medical records. Service connection is warranted for pseudofolliculitis barbae which had its onset in service. REASONS FOR REMAND The Veteran contends that his bilateral pes planus had its onset in active service. He clarified at his January 2021 hearing that the shoes he wore in active service had a type of framework in the foundation of the shoes; and that now he used shoe inserts. Clinical evaluation of the Veteran’s feet was normal at a pre-enlistment examination in December 2008. There was a normal arch of bilateral foot, which was asymptomatic. He was treated twice for a right heel blister in October 2009. More recent records show treatment for foot calluses and muscle cramping in April 2017. The Veteran described foot pain as a Level 7 on a scale of 10. He described discomfort in his arch, which had gotten worse over the years; and requested shoe inserts. The assessment was right foot/arch pain, pes planus, in April 2017; arch supports were ordered. An orthotic fitter in April 2017 noted a diagnosis of congenital pes planus. Where there is a reasonable possibility that a current condition is related to or is the residual of a condition or injury experienced in service, VA should seek a medical opinion as to whether the Veteran’s claimed current disability is in any way related to the condition or injury experienced in service. Horowitz v. Brown, 5 Vet. App. 217 (1993). Under these circumstances, further examination and opinion are necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4). The matter is REMANDED for the following action: 1. Obtain updated VA treatment records for the period from August 2019 to the present. 2. Schedule a VA foot examination; the claims file must be reviewed in conjunction with the examination. Identify all current conditions and disabilities of the left and right feet, and opine as to whether any such are at least as likely as not caused or aggravated by active service, to include foot blisters treated in service. If any identified foot disability is congenital or developmental, such must be clearly stated. If there is a superimposed injury or disease that has resulted in additional foot disability, such must be clearly stated. Allegations regarding the need for orthotics or special shoes in service must be addressed. 3. Then, readjudicate the claim on appeal. If any benefit sought remains denied, issue an appropriate supplemental statement of the case and return the appeal to the Board. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mary C. Suffoletta 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.