Citation Nr: 21041818 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 17-04 523 DATE: July 10, 2021 ORDER Entitlement to service connection for a skin condition, to include as due to an undiagnosed illness or as a symptom of a medically unexplained chronic multi-symptom illness, is denied. Entitlement to service connection for a chronic multi-symptom Gulf War illness, manifested by chronic fatigue syndrome, is granted. Entitlement to service connection for a chronic multi-symptom Gulf War illness, manifested by chronic joint pain, is granted. Entitlement to service connection for an acquired psychiatric disorder, diagnosed as adjustment disorder with mixed anxiety and depressed mood and insomnia disorder, as secondary to service-connected disabilities is granted. FINDINGS OF FACT 1. The Veteran's seborrheic dermatitis did not have its clinical onset in service and is not otherwise related to service. 2. The Veteran had active military service in the Southwest Asia theater of operations during the Persian Gulf War. 3. The Veteran's current symptoms of chronic fatigue syndrome and chronic joint pain are objective manifestations of an unexplained chronic multi-symptom Gulf War illness, incurred as a result of various environmental exposures during his Persian Gulf service. 4. The Veteran's adjustment disorder with mixed anxiety and depressed mood and insomnia disorder are proximately due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a skin condition are not met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. 2. The criteria for service connection for an unexplained chronic multi-symptom Gulf War illness, manifested by chronic fatigue syndrome, are met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.317. 3. The criteria for service connection for an unexplained chronic multi-symptom Gulf War illness, manifested by chronic joint pain, are met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.317. 4. The criteria for entitlement to service connection for an acquired psychiatric disorder, diagnosed as adjustment disorder with mixed anxiety and depressed mood and insomnia disorder, as secondary to service-connected disabilities are met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1987 to June 1991, including service in the Southwest Asia theater of operations during the Persian Gulf War. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran and his spouse testified during a Board hearing before the undersigned Veterans Law Judge. The Board remanded the appeal for further development in April 2020. The Board has recharacterized and broadened his psychiatric claim as reflected on the title page to include consideration of all psychiatric disorders reasonably raised by the record. Clemons v. Shinseki, 23 Vet. App. 1(2009). Service Connection Service connection may be established for disability resulting from injury or disease incurred during active service. 38 U.S.C. §§ 1110, 1131. Service connection may also 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). Generally, to establish service connection the evidence must show: (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 in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). For Veterans who served in the Southwest Asia Theater of Operations during the Persian Gulf War, on or after August 2, 1990, service connection may also be established under 38 U.S.C. § 1117 or 38 C.F.R. § 3.317. Under those provisions, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability resulting from an undiagnosed illness or medically unexplained chronic multi-symptom illness that became manifest during active military, naval or air 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. 38 U.S.C. § 1117; 38 C.F.R. § 3.317; 81 Fed. Reg. 71382 (Oct. 7, 2016). Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). 1. Entitlement to service connection for a skin condition, to include as due to an undiagnosed illness or as a symptom of a medically unexplained chronic multi-symptom illness, is denied. The Veteran asserts that his skin condition is due to an undiagnosed or unexplained multi-symptom illness as a result of his service in Southwest Asia. To this end, he maintains that his disability began in service manifested by skin rashes and continued post-service. See January 2020 Board Hearing Transcript. As to element one of service connection, the Veteran has a current diagnosis of seborrheic dermatitis. See August 2016 and October 2020 VA examination reports; see also November 1995 VA examination report diagnosing dermatitis four years post-service. In this regard, as the Veteran's skin disability has a clinical diagnosis with a specific and clear etiology, this disability cannot be service-connected based on an undiagnosed or unexplained multi-symptom illness theory of entitlement. 38 C.F.R. § 3.317. Regarding element two of service connection, in-service incurrence of a disease or injury, the Veteran's service treatment records (STRs) are silent for complaints, diagnoses, or treatment for any skin condition. However, his exposure to environmental toxins during the Persian Gulf War is conceded as consistent with the circumstances of his service. 38 U.S.C. § 1154(a). Thus, element two is also established. As to the final element, nexus, the only competent opinion of record, that of the October 2020 VA examiner, is against the claim. Specifically, after a thorough review of the claims file, including the Veteran's lay statements, the examiner opined that it is less likely than not that the Veteran's seborrheic dermatitis was incurred in or caused by his military service, including as a result of presumed exposure to environmental toxins during the Persian Gulf War. In support of his opinion, the examiner provided a detailed outline of the medical and lay evidence, including the Veteran's assertion that his skin rash had its onset during service in the 90s and has continued since that time, and first noted that the Veteran's STRs revealed no evidence of evaluation or treatment of a skin rash. To this end, he noted that the Veteran's seborrheic dermatitis was due to oily skin and excessive sebum production and stated that it was therefore less likely than not that his seborrheic dermatitis was a condition acquired during military service. Furthermore, regarding the Veteran's assertion that a diagnosis of seborrheic dermatitis is inaccurate, as his condition did not respond to medication/treatment, the examiner indicated the lack of response to a single treatment tried does not invalidate the diagnosis but only implies that the treatment chosen was ineffective. To this end, he emphasized that seborrheic dermatitis was caused by excessive sebum production and was not a consequence of exposure to toxins. Thus, he concluded that it was therefore less likely than not that the Veteran's seborrheic dermatitis is a consequence of exposure to environmental hazards during his service in Southwest Asia. Thus, he concluded that the Veteran's seborrheic dermatitis is not related to service, including presumed exposure to environmental toxins during the Persian Gulf War. There is no competent evidence to the contrary. The Board acknowledges the March 2021 private opinion where Dr. M. S. referenced the Veteran's skin condition as part of a multi-symptom chronic Gulf War Illness however, the examiner did not provide sufficient explanation or rationale for his conclusion. Namely, he did not address the clear and specific etiology of a seborrheic dermatitis diagnosis in relation to his theory on a medically unexplained multi-symptom illness. On the contrary, Dr. M.S. provided a detailed rationale for chronic fatigue syndrome and chronic joint pain, but failed to provide such a rationale in relation to the Veteran's diagnosed skin disorder. Thus, the opinion is of no probative value with regard to a skin condition. To the extent the Veteran believes that his current skin disability is related to service, to include environmental toxin exposure therein, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. Accordingly, his opinion as to the etiology of his skin disability is not competent medical evidence. Thus, for reasons outlined above, the third element of service connection is not established, and the claim fails on this basis alone. Thus, the preponderance of the evidence is against the claim, the benefit of the reasonable doubt rule is not for application, and entitlement to service connection for a skin condition must be denied. See 38 § U.S.C. 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for a chronic multi-symptom Gulf War illness, manifested by chronic fatigue syndrome and chronic joint pain, is granted. 3. Entitlement to service connection for a chronic multi-symptom Gulf War illness, manifested by chronic joint pain, is granted. 4. Entitlement to service connection for an acquired psychiatric disorder, diagnosed as adjustment disorder with mixed anxiety and depressed mood and insomnia disorder, as secondary to service-connected disabilities is granted. The Veteran asserts that his joint pain and chronic fatigue syndrome are due to an undiagnosed or unexplained multi-symptom illness as a result of his service in Southwest Asia. Additionally, he maintains that his psychiatric disorder and sleep disturbances are due to his chronic joint pain. See January 2020 Board Hearing Transcript and Third Party Correspondence. As the discussion below is favorable regarding direct service connection for a chronic multi-symptom Gulf War illness and secondary service connection regarding an acquired psychiatric disorder, no other theories of entitlement will be addressed. Undiagnosed/Chronic Multi-Symptom Illness An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117; 38 C.F.R. § 3.317, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1 (U.S. 2004). Further, lay persons are competent to report objective signs of illness. Id. 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 medically unexplained chronic multi-symptom illness is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi-symptom illness. A "medically unexplained chronic multi-symptom illness" means 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 multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2)(ii). "Objective indications of 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. 38 C.F.R. § 3.317 (a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom 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). For purposes of section 3.317, 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. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317 (a)(4). Here, in a March 2021 private opinion, after a thorough review of the claims file, Dr. M. S. found that the Veteran's chronic fatigue syndrome and chronic joint pain are a part of a chronic multi-symptom illness including irritable bowel syndrome, for which he is service-connected, and that his cluster symptoms including gastrointestinal issues, fatigue, and chronic knee pain began immediately following service. Furthermore, he noted that the Veteran's joint pain progressed to other areas of his body to cause generalized joint pain and that he sought further treatment for his back pain, which was more severe and distinguished from generalized joint pain that was diagnosed as disc herniation. He also noted that the Veteran was diagnosed with insomnia and depression during this time. Critically, Dr. M. S. stated that when the perception of his generalized joint pain changed 12 to 17 years after his initial onset of joint pain, the Veteran was diagnosed with minimal degenerative joint disease i.e. the very early stages of joint disease. To this end, he noted that early stages of joint disease do not explain the cause of his joint pain 17 years prior as early stages would not last 12 to 17 years. Thus, Dr. M. S. says his chronic joint pain that the Veteran experienced almost two decades prior to a degenerative joint disease diagnosis is unexplained. Therefore, he opined that it was at least as likely as not that the Veteran's chronic joint pain remains from an unknown etiology. Accordingly, the Veteran's joint pain has existed for at least six months and is considered chronic. Moreover, Dr. M. S. stated that in addition to his irritable bowel syndrome and chronic joint pain, the Veteran has also continued to experience chronic fatigue, depression, and insomnia. He noted that numerous workups have been completed that leave no explanation for his chronic fatigue syndrome and insomnia. He emphasized that the Veteran's treating physician opined and concurred in her opinion that many specialists confirmed his chronic fatigue syndrome diagnosis. (see May 2019 private treatment record; see also March 2019 nurse practitioner from the VA War Related Illness and Injury Study Center indicated that the Veteran met the 2015 Institute of Medicine criteria for a diagnosis of chronic fatigue syndrome, although she did not consider 38C.F.R. §4.88a criteria). To this end, Dr. M. S. noted that chronic fatigue syndrome could present with unique brain scans and biochemistry which has been shown at Georgetown University and other institutions to be related to mRNA and protein production changes in the brain that are abnormal with all types of exertion. He noted the classic symptoms are cognitive dysfunction, exhaustion with minimal exercise, chronic pain, and autonomic dysfunction such as gastrointestinal disorders and orthostatic hypertension. Dr. M. S. stated that the Veteran's presentation was consistent with chronic fatigue syndrome and that depression and at times fibromyalgia was caused by the syndrome and that the Veteran had been diagnosed with depression. Accordingly, the Veteran's chronic fatigue syndrome has also existed for at least six months and is considered chronic. The Board is aware of the October 2020 VA examiner's conclusion that the Veteran does not meet the criteria for chronic fatigue syndrome. However, the examiner did not adequately address and reconcile this finding with the March 2019 VA War Related Illness and Injury Study Center (WRIISC) findings and the May 2019 statement from Dr. Edman that several specialists concur on this diagnosis thus, resolving all reasonable doubt in the favor of the Veteran, the Board finds he has chronic fatigue syndrome. Based on the above evidence including Dr. M. S.'s opinion, the Board finds that the Veteran has a medically unexplained multi-symptom Gulf War illness defined by a cluster of symptoms including irritable bowel syndrome, skin, chronic fatigue syndrome, chronic joint pain, insomnia, depression, and mental confusion. Finally, the Veteran's chronic fatigue syndrome and chronic joint pain have both manifested to a compensable degree. To be assigned a rating of 10 percent pursuant to Diagnostic Code (DC) 6354, for chronic fatigue syndrome, the Veteran must demonstrate fatigue which waxes and wanes but results in periods of incapacitation of at least one but less than two weeks total duration per year or is controlled by continuous medication. 38 C.F.R. § 4.88b. Here, as the Veteran has a history of increasing and debilitating fatigue requiring medication, he would be entitled to a rating of 10 percent. See June 2018 VA treatment records. Additionally, pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. Pettiti v. McDonald, 27 Vet. App. 415, 425 (2015) (holding that § 4.59 serves as a bridge linking painful motion and limitation of motion, such that a claimant with painful motion is deemed to have limited motion under DC 5003 even though actual motion is not limited). Moreover, the provisions of 38 C.F.R. § 4.59 relating to painful motion are not limited to arthritis, so must be considered when raised by the claimant or reasonably by the record, even in non-arthritis contexts. See Burton v. Shinseki, 25 Vet. App. 1 (2011). To this end, 38 C.F.R. § 4.59 allows consideration of functional loss due to painful motion to be rated to at least the minimum compensable rating for a particular joint. Here, as the Veteran has multiple musculoskeletal disabilities with chronic joint pain including his back, knees, neck, shoulder, and arms that demonstrate painful motion, he would be entitled to at least a 10 percent rating. See October 2020 VA examination reports. As the preponderance of the evidence reflects objective indications of qualifying chronic disabilities that have manifested to a degree of 10 percent or more, service connection for chronic fatigue syndrome and chronic joint pain as manifestations of a chronic multi-symptom illness is warranted. Secondary Service Connection The Veteran has current diagnoses of adjustment disorder with mixed anxiety and depressed mood and insomnia disorder. See May 2020 and March 2021 VA examination reports. In this regard, the May 2020 VA examiner indicated symptoms of the two disorders could not be differentiated and that the two conditions are clinically associated with each other. Therefore, they would be considered as one intertwined condition for rating purposes. He is currently service-connected for irritable bowel syndrome, tinnitus, and now chronic fatigue syndrome and chronic joint pain. Therefore, the Board finds that the first and second elements of secondary service connection are met. The crux of the secondary service connection claim therefore rests on element three, whether there is a relationship, or nexus, between adjustment disorder with mixed anxiety and depressed mood and insomnia disorder and any of his service-connected disabilities. The Board finds that the only two competent opinions of record, that of Dr. M.S. and Dr. J. P., substantiate the claim. Specifically, in a March 2021 opinion, Dr. M. S. noted that chronic pain and fatigue often cause insomnia and that psychiatric disorders like depression and anxiety were "virtually 100% of the time" associated with insomnia. Additionally, he noted the Veteran had chronic fatigue syndrome and opined that it was at least as likely as not that his depression and insomnia were a direct result of the neurologic and biochemical factors associated with chronic fatigue syndrome and Gulf War illness. Additionally, in another March 2021 opinion, licensed psychologist Dr. J. P., after providing a detailed outline of the Veteran's history and personal interview, stated it was evident that the Veteran's diagnosed conditions including irritable bowel syndrome, tinnitus, chronic joint pain, chronic fatigue syndrome, and skin, of which all except skin are service-connected, minimize the quality of his life in numerous aspects, resulting in depression. She highlighted the Veteran's statements regarding the effects of his service-connected disabilities that cause physical limitations and thus result in depression and insomnia, which cause a strain on his social functioning. Furthermore, she cited to medical literature that noted that chronic pain can cause a person to wake up at night and feel tired and unproductive during the day and can cause additional irritation that makes it difficult to deal with others. She stated that these feelings could lead to irritability, depression, and even suicide and emphasized that depression and chronic pain shared some of the same nerve pathways to the brain and spinal cord. Additionally, Dr. J. P. cited a 2015 medical study that indicated that individuals with tinnitus can be more prone to mental health problems such as depression and anxiety due to struggling with the noise in their heads. Thus, she opined that it was at least likely as not that his unspecified depressive disorder and insomnia disorder were attributable to his service-connected disabilities and diagnosed conditions. To this end, both Dr. M. S. and Dr. J. P. provided an understandable and rational basis for their opinions and relied on an accurate history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Further, there is no reason to doubt the qualifications of Dr. M. S. and Dr. J. P. and there is no competent evidence to the contrary. Accordingly, for reasons and bases outlined above, element three is also met and secondary service connection for an acquired psychiatric disorder, diagnosed as adjustment disorder with mixed anxiety and depressed mood and insomnia disorder, due to service-connected disabilities is warranted. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Asante, Ruby 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.