Citation Nr: 21022605 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 19-09 605 DATE: April 16, 2021 ORDER Service connection for a skin disorder, claimed as dermatitis, is granted. REMANDED Service connection for cyst on neck is remanded. FINDING OF FACT The Veteran’s dermatitis had its onset in service. CONCLUSION OF LAW The criteria for service connection for a skin disorder, claimed as dermatitis, have been met. 38 U.S.C. §§ 101 (24), 1101, 1110, 1112, 1113, 1117, 1131, 1137, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1981 to February 1988, July 2000 to February 2001, and from February 2003 to April 2004, including service in the December 2004 to February 2008, including service in Iraq. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned in March 2021. 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). 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). The Board is charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). 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. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Persian Gulf veterans may be entitled to service connection for a chronic disability resulting from an undiagnosed illness or medically unexplained chronic multi-symptom illness in certain circumstances. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. A Persian Gulf veteran is defined as one 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 Persian Gulf War began on August 2, 1990. 38 C.F.R. § 3.2 (i). The Southwest Asia Theater of operations refers to 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, and the Red Sea. 38 C.F.R. § 3.317 (e)(2). Under legislation specific to Persian Gulf War veterans, service connection may also be established for a qualifying chronic disability resulting from an undiagnosed illness that became manifest during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more during a presumptive period. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1). The term “qualifying chronic disability” means a chronic disability resulting from any of the following (or any combination of any of the following): (A) an undiagnosed illness; (B) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms; (C) any diagnosed illness that the Secretary determines in regulations prescribed under subsection (d) warrants presumptive service-connection. 38 U.S.C. § 1117 (a)(2); 38 C.F.R. § 3.317 (a)(2)(i). Such chronic disability must have manifested either during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of at least 10 percent or more no later than December 31, 2021 and must not be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. 38 C.F.R. § 3.317 (a)(1). Objective indications of a chronic disability include both “signs,” in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. 38 C.F.R. § 3.317 (a)(4). 1. Service connection for a skin disorder, claimed as dermatitis The Veteran contends that he has a skin disorder that is related and had its onset in service. He specifically maintains that his skin problems started in 2004 while he was on active duty and it has progressively gotten worse since that time. He resorts to using medicated shampoo to maintain his condition, and his eyes get puffy and itchy for several days if the shampoo is not used. See June 2016 Statement in Support of Claim. In addition, in his March 2021 testimony at the Board hearing, the Veteran testified that he has had dry itchy skin since serving in the Persian Gulf and that his skin has been itchy since service and that he has used creams to treat the condition. The Veteran’s military personnel records show that he served in Southwest Asia, including service in Iraq from April 2003 to April 2004. The Veteran’s service treatment records do not specifically show any treatment for skin problems. The Veteran was provided a VA Examination in July 2016 for Skins Disease. He was diagnosed with seborrheic dermatitis with a date of diagnosis in 2005. The Veteran reported having onset of facial and general body rash in 2005 while in service and noted he sought regular treatment for his ongoing skin issues. The Veteran was treated with topical corticosteroids on a constant/near-constant basis. His dermatitis affected less than 5 percent of total body area and was manifested through raised erythematous areas over the body and scalp. The VA examiner held that the Veteran’s seborrheic dermatitis represents a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology. In his March 2017 Notice of Disagreement, the Veteran stated his condition was caused by his service in Iraq where he was exposed to the hazardous toxins from burn pits and also the extensive amounts of exhaust fumes from all the heavy equipment he was operating as a front-end loader. At his March 2021 Board hearing, the Veteran testified that he has dealt with his skin being severely dry and itchy since serving in the Persian Gulf. He constantly treats his skins with topical creams to maintain his condition and still deals with episodic flare-ups. The Veteran again reiterated that his exposure to the toxins in burn pits while in the Persian Gulf were a cause of his present skin disease. See March 2021 Hearing Transcript. The Board observes that the service treatment records do not show treatment for any skin disorders. The Board notes, however, that post-service treatment records show that the Veteran was treated for diagnosed skin problems, including seborrheic dermatitis. The Board observes that the July 2016 VA skin diseases examination report relates a diagnosis of recurrent seborrheic dermatitis, with an unclear etiology. The Board observes that while the VA examiner did not specifically address the Veteran’s reports of skin problems on his head and face during service and since service, The Board observes that the Veteran is competent to report skin problems during service and since service. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The examiner also did not address the subsequent lay statements submitted that indicate that the Veteran had complained of skins problems since his period of service. Therefore, the Board finds that the examiner’s opinion is not probative in this matter. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has taken judicial notice that skin disabilities, by their nature, are generally chronic and recurrent. See Ardison v. Brown, 6 Vet. App. 405 (1994). In Ardison, the Court held that VA must offer a dermatologic examination during an active stage of a skin condition. It appears that in this case, the Veteran’s claimed skin disorder was not examined during an active phase as the Veteran has not had treatments or procedures other than systemic or topical medications in the past 12 months for exfoliative dermatitis or papulosquamous disorders. The Veteran is diagnosed with a skin disorder, diagnosed as seborrheic dermatitis. Indeed, his VA outpatient treatment records are replete with diagnoses of dermatitis. The Board finds the Veteran’s reports of skin problems on his face and scalp during and since service to be credible. See Jandreau, 492 F.3d at 1372 (holding that lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). The Board also finds that the March 2021 lay statements provided at his Board Hearing, referring to the Veteran’s complaints of dermatitis since service to be credible. Resolving any doubt in the Veteran’s favor, the Board finds that the evidence is at least in equipoise regarding whether his skin disorder, diagnosed as seborrheic dermatitis, commenced during his periods of service. In light of the evidence, the Board cannot conclude that the preponderance of the evidence is against granting service connection for a skin disorder, diagnosed as seborrheic dermatitis. Therefore, service connection for a skin disorder, diagnosed as seborrheic dermatitis, is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As the Board has granted direct service connection in this matter, it need not address other theories of service connection. REASONS FOR REMAND 1. Service connection for cyst on neck is remanded. The Veteran asserts that service connection is warranted for cysts on his neck, that began showing up several years ago and worsened to the point that it was painful for him to move his neck. After seeking treatment for the cysts, he had the cysts surgically removed. See June 2016 Statement in Support of Claim. The Veteran’s service treatment records did not contain any complaints, treatment or diagnoses regarding cyst-related conditions. In his March 2021 hearing before the Board, the Veteran testified that his cysts originally began when he was deployed to Kosovo in approximately 2000-2001, where the body armor and Kevlar he wore continuously rubbed right on the base of his neck and the chemical present on his uniform irritated his skin, specifically around the neck area. While he later underwent surgery to remove the cysts, he reported he still feels the sensation of having the cysts present in the areas where the procedures were completed. The cysts impacted his upper body strength as he now has difficulty carrying heavy objects for a longer length of time. See March 2021 Hearing Transcript. Based on the foregoing, the Board finds that a remand is warranted for this claim to afford the Veteran a VA examination with a medical opinion regarding the etiology of his cysts on his neck. Because the Veteran served in Southwest Asia during the Persian Gulf War, the Board also finds that the examiner must again address whether he has an undiagnosed illness. See Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014), (holding, in part, that the Board needs to always consider 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 in cases in which Veterans have served in the Persian Gulf since August 2, 1990). The matters are REMANDED for the following action: 1. Notify the Veteran that he can submit lay statements from himself and from other individuals who have first-hand knowledge of any in-service and post-service occurrences of cysts on Veteran’s neck. Provide him a reasonable period of time to submit this evidence. 2. Obtain any outstanding VA and private treatment records. 3. Schedule the Veteran for an examination to determine the nature, onset and etiology of any cyst-related disability found to be present. The examiner is asked to review the pertinent evidence, including the Veteran’s lay report regarding his symptoms and undertake any indicated studies. Then, based on the results of the examination, the examiner is asked to address each of the following questions: (a) Please state whether the symptoms of each claimed condition are attributable to a known clinical diagnosis. If the Veteran does not now have, but previously had any such condition, when did that condition resolve? (b) Is the Veteran’s disability pattern consistent with: (1) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, (2) a diagnosable chronic multisymptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis. (c) If, after examining the Veteran and reviewing the claims file, you determine that the Veteran’s disability pattern is either (2) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis, then please provide an expert opinion as to whether it is related to a presumed environmental exposures experienced by the Veteran during service in Southwest Asia. (d) Is it at least as likely as not that any diagnosed disorder had its onset directly during the Veteran’s service or is otherwise causally related to any event or circumstance of his service, including environmental exposures during service in Southwest Asia during the Persian Gulf War? (e) If not directly related to service on the basis of questions (b)-(d), is any medical condition proximately due to, the result of, or caused by any service-connected disability(ies)? (f) If not caused by another medical condition, has any disorder been aggravated by any service-connected disability(ies)? In answering all questions (a) to (f), please articulate the reasons underpinning your conclusions. That is, (1) identify what facts and information, whether found in the record or outside the record, support your opinion, and (2) explain how that evidence justifies your opinion. A report of the examination should be prepared and associated with the Veteran’s VA claims file. The examiner must acknowledge and discuss the Veteran’s competent and credible lay evidence regarding the onset and recurrence of the Veteran’s cysts on his neck since service. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.