Citation Nr: 21023802 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-39 759A DATE: April 21, 2021 ORDER Entitlement to service connection for headaches as due to Persian Gulf War Syndrome (PGWS) is granted. Entitlement to service connection for irritable bowel syndrome (IBS) as due to PGWS is granted. Entitlement to service connection for acne is granted. Entitlement to service connection for a left foot skin condition is granted. REMANDED Entitlement to service connection for a left foot musculoskeletal condition is remanded. FINDINGS OF FACT 1. The Veteran’s headaches are due to environmental exposures incurred during his active-duty service in the Persian Gulf. 2. The Veteran’s IBS is due to environmental exposures incurred during his active-duty service in the Persian Gulf. 3. The Veteran’s acne was incurred in his active-duty service. 4. The Veteran’s left foot skin condition was incurred in his active-duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for headaches as due to PGWS have been met. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.303, 3.317. 2. The criteria for entitlement to service connection for IBS as due to PGWS have been met. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.303, 3.317. 3. The criteria for entitlement to service connection for acne have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 4. The criteria for entitlement to service connection for a left foot skin condition have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2008 to April 2013. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of January 2014 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The undersigned Veterans Law Judge (VLJ) conducted a hearing in this matter in July 2020 and a transcript of that hearing is of record. Before addressing the Veteran’s claims on the merits, the Board briefly clarifies the scope of the matters remaining on appeal. The rating decision on appeal addressed additional service-connection issues which the Veteran included in his notice of disagreement (NOD). See November 2014 NOD. However, several of these issues were subsequently granted in a rating decision of July 2017. See July 2017 Rating Decision. Accordingly, only the issues listed above were fully appealed to the Board. See July 2017 Statement of the Case (SOC); see also August 2017 VA Form 9. The Board also notes that the Veteran’s left foot claim has been variously described as both a skin condition and a musculoskeletal condition. See August 2017 VA Form 9 at 1 (describing active-duty ankle injuries resulting in left foot “pain and swelling that is constant”); cf. July 2020 Transcript at 11 (describing “a rash or a foot fungus”). As will be discussed below, the evidence of record and applicable regulations support the grant of service connection for the left foot skin condition, but require the remand of the left foot musculoskeletal condition. Accordingly, the Board has bifurcated these issues as described above. Entitlement to service connection for headaches and IBS. Generally, service connection requires the existence of a present disability, the in-service incurrence or aggravation of a disease or injury, and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (2004). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be assigned on a presumptive basis, or without proof of a causal relationship, where a Persian Gulf veteran has a qualifying chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multisymptom illness. 38 U.S.C. § 1117(a). The term “Persian Gulf veteran” in this context means “a veteran who served on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War.” 38 U.S.C. § 1117(f). The Board notes that the Veteran has received the Iraq Campaign Medal. See April 2013 Discharge Certificate; see also id. (noting “service in Iraq” between 2009 and 2010). The Board therefore finds that the Veteran is a “Persian Gulf veteran” as contemplated by statute. The Veteran asserts that these conditions are due to his exposure to environmental contaminants during his active-duty service in the Persian Gulf. See July 2020 Transcript at 2-5 (addressing headaches); see also id. at 6-8 (addressing IBS). The Veteran underwent a VA examination on these issues in January 2017. As an initial matter, the Board notes that the Veteran has received diagnoses for each of these conditions. See January 2017 VA Examination Report (Headaches) at 1; see also January 2017 VA Examination Report (IBS) at 1. The Board therefore finds that the first Shedden factor has been satisfied as to each of these conditions. As noted above, the Veteran also served on active duty in the Persian Gulf. The Board therefore finds that the second Shedden factor has been satisfied as to each of these conditions as well. See 38 U.S.C. § 1118(a)(3) (providing that a qualifying Persian Gulf veteran who manifests a qualifying illness “shall be presumed to have been exposed by reason of such service” to applicable toxic agents or environmental hazards). The January 2017 VA examiner opined that “[there] is no evidence for an undiagnosed illness, a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, or a diagnosable chronic multisymptom illness with a partially explained etiology.” See January 2017 VA Examination Report (PGWS) at 4. However, the January 2017 VA examiner’s assessment of each of the Veteran’s conditions relies almost completely on the absence of corroborating service treatment records (STR) and the interval between his active-duty service and corroborating medical records. See id. at 4-5. The January 2017 VA examiner opined that the Veteran’s headaches have “a clear and specific etiology” and that his IBS has a “partially explained etiology.” Id. However, this examiner did not provide any explanation for what these “clear and specific” or “partially explained” etiologies are, or why they are more likely than not attributable to non-service-connected factors. The Board also notes that the Veteran has provided explanations for the absence of corroborating STR, and that the Veteran’s statements to the January 2017 VA examiner appear to reflect these explanations, yet the January 2017 VA examiner did not address the relevance of these statements in her opinion. See August 2017 VA Form 9 (asserting that “[the] medic is attached to the infantry unit and if you have a problem with headaches or diarrhea you will get pills from the medic, never is a record made on an individual’s medical records”); cf. January 2017 VA Examination Reports at 1-2. The applicable regulations provide that certain signs or symptoms may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness. A “medically unexplained chronic multisymptom illness,” for purposes of this presumption, is defined in pertinent part 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). Signs or symptoms which may be indicative expressly include “[headache]… [and] [gastrointestinal] signs or symptoms[.]” See 38 C.F.R. § 3.317(b). Other than citing to a single September 2015 treatment note raising the possibility of lactose intolerance, the January 2017 VA examiner provides no reasoning for the conclusion that these symptoms are not indicative of a medically unexplained chronic multisymptom illness as contemplated by 38 C.F.R. § 3.317. See January 2017 VA Examination Report (PGWS) at 4; cf. October 2018 Medical Treatment Records at 16 (providing subsequent July 2018 treatment note discounting possibility of lactose intolerance based on dietary changes). The applicable regulations also provide that disabilities service-connected under this presumption must manifest “either during [active-duty] service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2021[.]” 38 C.F.R. § 3.317(a)(1)(i). The Board finds the Veteran’s assertions as to the onset of his symptoms during his active-duty service, as well as his statements concerning the recording of medical treatment while performing combat infantry duties, to be generally credible. See April 2013 Discharge Certificate (reflecting military occupational specialty (MOS) as infantryman and receipt of the Combat Infantryman Badge). However, even if the absence of corroborating STR supported a post-service onset of the Veteran’s conditions, the January 2017 VA examiner does not explain why an onset date “greater than 1 year after discharge” would support the conclusion that the Veteran’s conditions are less likely than not signs or symptoms of a medically unexplained chronic multisymptom illness as contemplated by 38 C.F.R. § 3.317. See January 2017 VA Examination Report (PGWS) at 4. “[Most] of the probative value of a medical opinion comes from its reasoning. Neither a VA medical examination report nor a private medical opinion is entitled to any weight… if it contains only data and conclusions.” Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). “Relevant points that can be discussed in an examination report include, but are not limited to, why the examiner finds cited studies persuasive or unpersuasive, whether the veteran has other risk factors for developing the claimed condition, and whether the claimed condition has manifested itself in an unusual way.” Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Because the January 2017 VA examiner provided no reasoning to support her conclusion that the Veteran’s diagnosed conditions are not signs or symptoms of a medically unexplained chronic multisymptom illness, the Board assigns her conclusion as to that point no probative weight. The Board has therefore considered whether to remand this case for an addendum opinion on these matters. However, the Board is also mindful of regulatory constraints on its ability to remand for further development, which “should not be undertaken when [the] evidence present is sufficient for this determination.” 38 C.F.R. § 3.304(c). Applicable case law provides that “[objective] medical evidence is not required for an award of service connection under [38 U.S.C. §] 1117. Rather, only competent evidence is required with ‘signs in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification.’” See Gutierrez v. Principi, 19 Vet. App. 1, 9 (2004) (internal citation omitted); see also id. (noting that lay statements alone may support the existence of symptoms perceptible to lay observation). The Board is particularly mindful that the applicable regulations provide that this presumption will not apply: If there is affirmative evidence that the disability was not incurred during [active-duty] service in the Southwest Asia theater of operations; or… If there is affirmative evidence that the disability was caused by a supervening condition or event that occurred between the veteran’s most recent departure from [active-duty service in Southwest Asia] and the onset of the disability; or… If there is affirmative evidence that the disability is the result of the veteran’s own willful misconduct or the abuse of alcohol or drugs. See 38 C.F.R. § 3.317(a)(7). As discussed above, the existence of the Veteran’s headaches and IBS has been verified by VA examiners and these conditions qualify as potential signs or symptoms of a medically unexplained chronic multisymptom illness. The medical examinations of record have not identified, nor has the Board otherwise found in the record, affirmative evidence supporting a “conclusive pathophysiology or etiology” or supervening etiology as contemplated by 38 C.F.R. § 3.317. The assignment of service connection for these conditions as presumptively due to PGWS is therefore warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.317. Entitlement to service connection for acne and a left foot skin condition. As noted above, service connection requires the existence of a present disability, the in-service incurrence or aggravation of a disease or injury, and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. A lay witness is generally competent, and the Board finds the Veteran credible, to report symptoms capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Board finds that such symptoms include the manifestation of the Veteran’s acne and left foot skin condition. “Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board[.]” Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). As noted above, the Veteran underwent VA examinations in January 2017, with an additional examination addressing his feet in March 2017. See January 2017 VA Examination Report (Skin) at 1 (diagnosing acne); see also March 2017 Disability Benefits Questionnaire (DBQ) (Skin) at 2 (diagnosing “left forefoot callus”); see also April 2018 Medical Treatment Records at 9 (providing private treatment provider’s diagnosis of tinea pedis). The first Shedden factor has therefore been met for each of these conditions. The Veteran has asserted that his acne and left foot skin conditions were incurred in his active-duty service. See July 2020 Transcript at 8-9 (observing that acne first manifested “in Iraq… in very close quarters living with approximately 30 other members of my platoon” with shared shower facilities); see also id. at 9 (“I probably mentioned [my skin condition] to my medic, but this was unfortunately not something that anybody cared about [because it] didn’t affect my ability to go out on mission”); see also id. at 11-12 (asserting first manifestation of ongoing left foot skin condition after wading through waste-disposal trenches). As discussed above, the Board has found the Veteran both competent and generally credible to discuss the onset of these symptoms and to explain the absence of contemporaneous STR as due to combat infantry duties. The Board therefore finds that the second Shedden factor has been met as to each of these conditions as well. The January 2017 VA examiner did not address the etiology of these conditions under a direct theory of service connection. See January 2017 VA Examination Report (PGWS). The March 2017 VA examination and April 2018 private treatment records likewise did not provide any opinions as to etiology. In light of the VA’s failure to procure adequate medical opinions; and because the Board has found the Veteran competent and credible to testify as to the onset of these conditions during service and their subsequent ongoing manifestation of symptomatology, remand for an additional examination is not necessary under the circumstances of this case. See Jandreau, 492 F.3d at 1376; see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau and providing in pertinent part that medical evidence is not always required to establish a nexus for direct service connection). The Board therefore concludes that it is at least as likely as not that the third Shedden factor has been met as to each of these conditions based on the Veteran’s competent and credible statements. 38 U.S.C. § 5107. The assignment of service connection for these conditions on a direct basis is therefore warranted. 38 C.F.R. § 3.303. REASONS FOR REMAND Entitlement to service connection for a left foot musculoskeletal condition. The January 2017 VA examiner did not diagnose the Veteran with any left foot musculoskeletal conditions. See January 2017 VA Examination Report (Feet). The March 2017 VA examiner diagnosed the Veteran’s left foot skin condition, but no other conditions. See March 2017 DBQ (Skin); cf. March 2017 DBQ (Feet). The Veteran’s private treatment provider diagnosed “degenerative joint disease [of the] left calcaneal cuboid joint [with] [possible] remote avulsion fractures” but did not provide an opinion as to the etiology of this condition. See April 2018 Medical Treatment Records at 9. As noted above, the Veteran asserts that this condition is due to ankle injuries sustained during his active-duty service. See August 2017 VA Form 9. Because medical expertise is required to establish a nexus on a direct basis for this condition, the Board must remand this issue for an examination which provides such a nexus opinion. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). This matter is therefore REMANDED for the following action: Provide the Veteran’s claims file to an appropriately-qualified examiner. The examiner shall review the claims file, including a copy of this remand, and provide opinions as to the following questions: 1. Is it at least as likely as not that the Veteran has a musculoskeletal condition of the left foot, including but not limited to degenerative joint disease of the left calcaneal cuboid joint? 2. If so, is it at least as likely as not that this condition was incurred in or a result of his active-duty service? The examiner shall specifically review the April 2018 private medical treatment notes, discussed above in this remand, before reaching their conclusions. If the examiner concludes that the private treatment provider’s diagnosis was erroneous, the examiner shall clearly explain the evidence and reasoning supporting such a conclusion. If the examiner is unable to provide such opinions without personally examining the Veteran, schedule the Veteran for such an examination. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Blore, 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.