Citation Nr: 0003001 Decision Date: 02/07/00 Archive Date: 02/10/00 DOCKET NO. 98-04 429 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUES 1. Entitlement to service connection for contact dermatitis, to include as due to an undiagnosed illness. 2. Entitlement to service connection for chemical sensitivity with headaches and nausea, to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Helinski, Counsel INTRODUCTION The veteran had active military service from October 1987 to September 1995, including service in the Southwest theater of operations during the Persian Gulf War from September 1993 to January 1994. This matter comes before the Board of Veterans' Appeals, BVA or Board, on appeal from an October 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware, which denied the benefits sought on appeal. The issue of entitlement to service connection for contact dermatitis, to include as due to an undiagnosed illness, will be addressed in the REMAND following the ORDER in this decision. FINDINGS OF FACT 1. The veteran had active military service in the Southwest theater of operations during the Persian Gulf War. 2. There is no medical evidence of record of a disability manifested by chemical sensitivity with headaches and nausea, which is related to the veteran's period of active military service, nor is there any objective evidence perceptible to an examining physician, or other verifiable non-medical indicators, which show that the veteran currently suffers from chemical sensitivity with headaches and nausea, which cannot be attributed to a known diagnosis, and which became manifest to a degree of 10 percent or more after service separation. CONCLUSION OF LAW A disability manifested by chemical sensitivity with headaches and nausea was not incurred in or aggravated by the veteran's active military service. 38 U.S.C.A. §§ 1110, 1117, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.317 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the veteran's claim for service connection is well-grounded. 38 U.S.C.A. § 5107(a). In that regard, the record reflects that the veteran had active military service in the Southwest theater of operations during the Persian Gulf War. Accordingly, the provisions of 38 U.S.C.A. § 1117 regarding chronic disability due to undiagnosed illness apply. The veteran's qualifying military service, her reported complaints, and the unique nature of the statutory and regulatory provisions regarding disability due to undiagnosed illnesses render the veteran's claim plausible. The Board finds that the evidence of record allows for equitable resolution of the claims on appeal, and that the duty to assist the veteran in establishing this claim has been satisfied. 38 U.S.C.A. § 5107(a). In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Additionally, if a condition noted during service is not shown to be chronic, then generally a continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). Furthermore, 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). In addition to the above-referenced laws and regulations, 38 U.S.C.A. § 1117 provides for service connection in cases where a veteran suffers from chronic disability resulting from an undiagnosed illness, which became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or that became manifest to a degree of 10 percent of more between the end of such service and December 31, 2001. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1)(i). Moreover, VA regulations provide that the VA shall pay compensation to a Persian Gulf veteran who "exhibits objective indications of chronic disability" (manifested by certain signs or symptoms), which, by history, physical examination and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a); see also 38 U.S.C.A. § 1117. Signs or symptoms that may be manifestations of undiagnosed illnesses include, but are not limited to, fatigue, joint pain, symptoms involving the skin, and neuropsychological signs. 38 C.F.R. § 3.317(b). "Objective indications" include both 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)(2). The veteran essentially contends that she currently suffers from a disorder manifested by chemical sensitivity with headaches and nausea, which is due to her active military service, including the time she spent in the Southwest Asia theater of operations during the Persian Gulf War. The Board has thoroughly reviewed the veteran's claim in light of the evidence of record and the above-referenced laws and regulations. However, for the reasons and bases set forth below, the Board finds that the veteran's claim must be denied. Reviewing the evidence of record, the Board notes that the veteran's service medical records, including those from her service during the Persian Gulf War, reveal the following. During service, the veteran was seen periodically with complaints of nausea and headaches. In a February 1995 comprehensive clinical evaluation, the veteran was diagnosed with migraine headaches, and a history of sensitivity to certain chemical odors. Following service separation, in January 1996 the veteran underwent a VA examination. She complained of chemical sensitivity to cleaning agents, fuels, and perfumes, which she claimed caused her headaches and sometimes nausea and vomiting. The diagnosis included a history of chemical sensitivity and headaches. In an associated VA neuropsychiatry examination, the veteran was diagnosed with migraine headaches. In a March 1996 VA examination, the veteran was examined for her complaints of headaches; the diagnosis was headaches with no neurological sequelae. Initially, the Board notes that in an October 1996 rating decision, the veteran was granted service connection for migraine headaches, with associated confusion, forgetfulness, nausea, dizziness and blurred vision. Nevertheless, the Board acknowledges the veteran's contentions that her chemical sensitivity with headaches and nausea is a separate disability for which she should be granted service connection. The Board has reviewed the entire record, and finds that other than the veteran's report of her own history, there is no medical diagnosis of chemical sensitivity with headaches and nausea, as due to an undiagnosed illness. Rather, at most, the medical evidence notes complaints of nausea and headaches, as well as a history of sensitivity to certain odors. As such, the Board finds that the preponderance of the evidence is against a claim for service connection for chemical sensitivity with headaches and nausea, as due to an undiagnosed illness. See 38 C.F.R. § 3.317. Furthermore, the Board finds that although the veteran was seen with complaints of headaches and nausea during service, there is no medical evidence of record of a current diagnosis of a disorder manifested by chemical sensitivity with headaches and nausea, which has been causally linked to an incident of the veteran's active military service. See 38 C.F.R. § 3.303. In conclusion, as outlined above, the Board finds that the preponderance of the evidence is against the veteran's claim for entitlement to service connection for chemical sensitivity with headaches and nausea, either as due to an undiagnosed illness or based on principles of direct service connection, and the appeal is denied. In reaching this decision, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but finds that as the evidence is not in such a state of equipoise, the benefit of the doubt rule is inapplicable. ORDER Entitlement to service connection for chemical sensitivity with headaches and nausea, to include as due to an undiagnosed illness, is denied. REMAND The veteran is claiming service connection for contact dermatitis, to include as due to an undiagnosed illness. A review of the veteran's service medical records reveals that in February 1991, she was seen with a history of puritis on her arms and legs; the diagnosis was contact dermatitis. In November 1991, the veteran was assessed with possible contact dermatitis. In March 1992, she was seen with complaints of a rash on her arms and legs that would come and go. The diagnosis was again contact dermatitis. There is no significant medical evidence of record following the veteran's separation from service, which references contact dermatitis. However, the Board notes that in the veteran's substantive appeal, received at the RO in March 1998, she indicated that she "will report to the local VA hospital on Monday, [March 16, 1998], to attempt to get a consult to see a dermatologist." It does not appear that the RO made a request for medical records associated with this visit. The United States Court of Appeals for Veterans Claims has held that the VA has constructive knowledge of medical records generated by its agency, and the VA is obligated to obtain any such pertinent treatment records, as well as other records of which the VA was notified. See Bell v. Derwinski, 2 Vet. App. 611, 612-613 (1992); Murincsak v. Derwinski, 2 Vet. App. 363, 369-370 (1992); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992). Therefore, the RO should ensure that all VA records of treatment for the veteran are obtained and associated with her claims file. In light of the foregoing, and in order to give the veteran every consideration with respect to the present appeal, it is the Board's opinion that further development of the case is necessary. Accordingly, this case is REMANDED to the RO for the following action: 1. The RO should request any and all VA medical records reflecting treatment for a skin condition. A specific request should be made for any VA medical records reflecting treatment of a skin condition on or about March 16, 1998. (see pg. 6 supra.) If the search for these records has negative results, the claims file should be properly documented to that effect with the reason why such records were not obtained. 2. When the requested development has been completed, the case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the veteran and her representative should be furnished a supplemental statement of the case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional information and to accord the veteran due process of law. The Board does not intimate any opinion as to the merits of this case, either favorable or unfavorable, at this time. The veteran is free to submit any additional evidence in connection with the current appeal. No action is required of the veteran until further notification. BRUCE KANNEE Member, Board of Veterans' Appeals