Citation Nr: 0006245 Decision Date: 03/08/00 Archive Date: 03/17/00 DOCKET NO. 98-10 523A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a skin rash due to an undiagnosed illness. 2. Entitlement to service connection for low back pain due to an undiagnosed illness. 3. Whether new and material evidence has been submitted sufficient to reopen the veteran's claim of entitlement to service connection for right inguinal hernia. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD K. K. Enferadi, Associate Counsel INTRODUCTION The veteran had active service from January 1974 to May 1994. He served in Persian Gulf Region from December 1990 to April 1991. This matter arises before the Board of Veterans' Appeals (Board) from a February 1998 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that denied entitlement to service connection for a skin rash due to an undiagnosed illness, for low back pain as an undiagnosed illness, and determined that no new and material evidence had been submitted so as to warrant a reopening of the veteran's claim of entitlement to service connection for a right inguinal hernia. FINDINGS OF FACT 1. The veteran's skin rash is due to an undiagnosed illness that manifested itself during service. 2. The veteran's disability manifested by low back pain may not be disassociated from his period of service. 3. Entitlement to service connection for right inguinal hernia was denied in a rating decision dated in October 1995; no appeal was perfected therefrom. 4. Evidence the veteran has submitted since the RO's October 1995 rating decision is either cumulative or redundant, does not bear directly and substantially upon the specific matter under consideration, or is not, by itself or in connection with evidence previously assembled, so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSIONS OF LAW 1. A skin rash due to an undiagnosed illness was incurred during service. 38 U.S.C.A. § 1117 (West 1991 and Supp. 1998) and 38 C.F.R. § 3.317 (1999). 2. A low back disability manifested by pain was incurred during service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). 3. Evidence received since the October 1995 rating decision that denied service connection for right inguinal hernia is not new and material. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Background A review of the record reveals that the RO denied entitlement to service connection for a right inguinal hernia in a rating decision dated in October 1995. At that time, the RO considered the veteran's service medical records that reveal a history of a herniorrhaphy prior to service. The service medical records include a February 1975 clinical entry that reveals a pulled muscle in the lower back from a basketball game. In various records beginning in June 1975, the veteran was seen for face rash due to ingrown face hairs. In an entry dated in July 1975, the veteran was diagnosed with acne. Also included in the records is an entry dated in September 1975 that reveals muscle spasms in the lower back from a football game. In a May 29 (year unknown) record, the veteran complained of bilateral inguinal pain; the diagnosis rendered was probable epididymitis. An examination report dated in September 1976 is of record that reveals that the veteran underwent a right herniorrhaphy when he was six months old. In an undated medical history form, the veteran indicated recurrent back pain due to a heavy object that reportedly fell on him in 1981. In several records dated in July 1981, the veteran was treated for low back pain due to a fall. In another undated form, the veteran indicated a history of skin diseases. In an April 1984 record, the veteran complained of an injury to the lower back while playing basketball. The assessment was muscle spasms. In June 1985, the veteran was in an auto accident and complained of tenderness to the paravertebral muscles. In clinical records dated in December 1989, the veteran was treated for muscle spasms in the lower back. Also of record are VA outpatient records dated from December 1994 to August 1995. In a December 1994, the veteran's history of right inguinal repair is noted in a VA medical certificate; he indicated that he had noticed it the previous Friday. A Persian Gulf War registry examination is of record dated in February 1995. Included in the list of diagnoses, in pertinent part, is a history of a rash and low back pain. In a recitation of the veteran's history is reported that the veteran experienced dots on his chest and buttock for the prior three months. Also noted is a recurrent of inguinal hernia. The veteran also reported low back pain since 1977 when he reportedly slipped off a pick-up truck. The impressions rendered are small, pinpoint, hypopigmented macules on the chest and thighs, recurrent right inguinal hernia status post right inguinal hernia repair as a child, and chronic low back pain, status post low back injury in 1977. In a medical entry dated in March 1995, the veteran was seen for a rash on his back and chest. The examiner diagnosed lichenplanus. A right inguinal hernia repair was performed at a VA medical facility in May 1995. In October 1995, the veteran was denied entitlement to service connection for right inguinal hernia. In January 1996, the veteran claimed entitlement to service connection for low back pain and skin rash due to his service in the Persian Gulf War. VA examination dated in July 1996 revealed impressions of hypopigmented macular rash on chest and thighs, right inguinal hernia, small and reducible, status post right inguinal hernia repair as a child, and chronic low back pain. A report from VA examination conducted in August 1996 is of record that reveals current complaints of white dots on the veteran's chest, back, and abdomen and occasional low back pain. On examination, the examiner noted the presence of multiple hypopigmented macular rashes scattered over the veteran's chest, abdomen, arms, and back. The diagnoses rendered were lichenplanus on the chest, abdomen, arms, and back, and musculoskeletal pain in the lower back. An x-ray of the veteran's spine was done in November 1996 at which time the radiologist noted a slight degree of levoscoliosis and an overall unremarkable study. VA examination dated in November 1996 revealed diagnoses of no hernia and a normal musculature of the back, essentially asymptomatic, except for occasional twinges. VA examination dated in August 1997 revealed in pertinent part are diagnoses of skin condition due to an undiagnosed illness and slight tenderness of the lumbosacral area. Analysis The issues before the Board entail whether the veteran is entitled to service connection for a skin rash and low back pain due to an undiagnosed illness and whether the veteran has submitted new and material evidence sufficient to reopen his claim of entitlement to service connection for a right inguinal hernia. These matters are analyzed separately below. Skin disorder This veteran has claimed that his skin rash and disorder had its onset during his period of service in the Persian Gulf War. Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(a), (b), (d) (1999). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1999). Establishing "direct" service connection for a disability which has not been clearly shown in service requires evidence sufficient to show (1) the existence of a current disability; (2) the existence of a disease or injury in service; and (3) a relationship or connection between the current disability and a disease contracted or an injury sustained during service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(d) (1999); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). For veterans who served in the Southwest Asia theater of operations during the Persian Gulf War who exhibit objective indications of chronic disability manifested by one or more specific signs or symptoms, such disability may be service connected provided that it became manifest during active service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2001; and provided that the disability cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117 (West 1991); 38 C.F.R. § 3.317(a)(1) (1999). "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)(2) (1999). Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6- month period will be considered chronic. The 6-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)(3) (1999). Signs and symptoms which may be manifestations of undiagnosed illness include signs or symptoms involving the skin. 38 C.F.R. § 3.317(b)(1), (3), (10) (1999). The threshold question as to the claim presented is whether it is well grounded under 38 U.S.C.A. § 5107(a). A well grounded claim is a plausible claim which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). There must be more than an allegation; the claim must be accompanied by supporting evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In order for a claim to be well grounded, there must be competent evidence of a current disability (a medical diagnosis); of incurrence or aggravation of a disease or injury in service (lay or medical evidence); and of a nexus between the in-service injury or disease and the current disability (medical evidence). See Caluza v. Brown, 7 Vet. App. 498 (1995). With respect to claims involving Persian Gulf veterans, a well grounded claim for compensation under 38 U.S.C.A. § 1117(a) and 38 C.F.R. § 3.317 for disability due to undiagnosed illness generally requires the submission of some evidence of: (1) active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; (2) the manifestation of one or more signs or symptoms of undiagnosed illness; (3) objective indications of chronic disability during the relevant period of service or to a degree of disability of 10 percent or more within the specified presumptive period; and (4) a nexus between the chronic disability and the undiagnosed illness. See VA O.G.C. Prec. Op. No. 4-99 (May 3, 1999). In light of the pertinent regulations, the Board recognizes that this Persian Gulf veteran's claim of entitlement to service connection for a skin rash due to an undiagnosed illness is granted. Essentially, the evidence of record substantiates a chronic undiagnosed skin disorder that became manifest within the presumptive period (extended to December 31, 2001). Specifically, as noted above during the most recent VA examination in August 1997, the examiner rendered such diagnosis, that is one of a skin condition due to an undiagnosed illness. Furthermore, there are objective indications of a rash in February 1995, approximately nine months after the veteran separated from service. At that time, as noted above, the veteran was treated for small, pinpoint, hypopigmented macules on the chest and thighs. Resolving the benefit of the doubt in the veteran's favor, the criteria for an award of service connection for a skin rash as an undiagnosed illness are satisfied. 38 U.S.C.A. §§ 1117, 5107; 38 C.F.R. § 3.317. Low back pain In this case, the Board notes that the veteran claims entitlement to service connection for low back pain due to an undiagnosed illness. In view of the fact that the RO has addressed the veteran's disability both on a direct service connection basis and on the premise of his period of service in the Persian Gulf War, it is appropriate for the Board to address this matter on both grounds. In order for a claim to be well grounded, there must be competent evidence of current disability (medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of an nexus between the inservice injury or disease and the current disability (medical evidence). See Caluza v. Brown, 7 Vet. App. 498 (1995); see also Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997); Heuer v. Brown, 7 Vet. App. 379 (1995); Grottveit v. Brown, 5 Vet. App. 91 (1993). The second and third elements of this equation may also be satisfied under 38 C.F.R. § 3.303(b) (1998) by (a) evidence that a condition was "noted" during service or during an applicable presumptive period; (b) evidence showing post service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post service symptomatology. See 38 C.F.R. § 3.303(b) (1998); Savage v. Gober, 10 Vet. App. 488 (1997). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of (i) the existence of a chronic disease in service or during an applicable presumptive period and (ii) present manifestations of the same chronic disease. Ibid. For the purpose of determining whether a claim is well grounded, the credibility of the evidence in support of the claim is presumed. See Robinette v. Brown, 8 Vet. App. 69 (1995). Essentially, the veteran's service medical records support that he injured his back on several occasions including while playing sports, when a heavy object fell on top of him, during a fall off of a pick-up truck, and during an auto accident. Furthermore, post-service, the veteran has continued to complain of recurring low back pain attributable to the events noted in service; thus, there is evidence of continuity of symptoms. 38 C.F.R. § 3.303(b). Moreover, with respect to current disability, the most probative evidence in support of the veteran's claim is findings noted during VA examination conducted in July 1996. At that time, the examiner rendered a diagnosis of chronic low back pain, status post injury in 1977 when the veteran fell off of a truck. In essence, the examiner's diagnosis serves to establish a medical relationship between post- service disability and the veteran's period of service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. On subsequent VA examination in November 1996, the veteran's low back was described as asymptomatic, but with occasional twinges. Thus, in light of the evidence of record, and pursuant to VA law that requires that all reasonable doubt as to any relevant matter be resolved in favor of the veteran, the Board concludes that the veteran has presented competent evidence that he has a chronic low back disability, albeit minimal in degree, which had its onset during his period of service. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1999). Thus, his claim of entitlement to service connection on a direct basis is granted. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Right Inguinal Hernia - New and material evidence The issue presently before the Board is whether the veteran has submitted new and material evidence sufficient to reopen his service connection claim for a right inguinal hernia. In order to reopen a previously denied claim, new and material evidence must be submitted by the claimant. 38 U.S.C.A. § 5108. New and material evidence is defined by regulation as evidence which has not been previously submitted to agency decisionmakers which bears directly and substantially upon the matter under consideration. It must be neither cumulative nor redundant and by itself or in conjunction with evidence previously assembled be so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156. New and material evidence must be presented or secured since the time that the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet.App. 273 (1996). Evidence presented since the last final disallowance need not be probative of all elements required to award the claim, but need be probative only as to each element that was a specified basis for the last disallowance. See Glynn v. Brown, 6 Vet.App. 523, 528-29 (1994). Hodge v. West, 155 F.3d 1356, (Fed. Cir. 1998) provides for a reopening standard which calls for judgments as to whether new evidence (1) bears directly or substantially on the specific matter, and (2) is so significant that it must be considered to fairly decide the merits of the claim. Moreover, Hodge stressed that under the regulation new evidence that was not likely to convince the Board to alter its previous decision could be material if that evidence provided "a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision." Id. Pursuant to Elkins v. West, 12 Vet.App. 209 (1999), the Board must first determine whether the veteran has presented new and material evidence under 38 C.F.R. § 3.156(a)(1998) in order to have a finally denied claim reopened under 38 U.S.C. § 5108. Second, if new and material evidence has been presented, immediately upon reopening the claim the Secretary must determine whether, based upon all the evidence of record in support of the claim, presuming its credibility, see Robinette v. Brown, 8 Vet.App. 69, 75-76 (1995), the claim as reopened (and as distinguished from the original claim) is well grounded pursuant to 38 U.S. C. § 5107(a). Third, if the claim is well grounded, the Secretary may then proceed to evaluate the merits of the claim but only after ensuring that his duty to assist under 38 U.S.C. § 5107(b) has been fulfilled. In October 1995, the veteran was denied entitlement to service connection for a right inguinal hernia based on the fact that such disability existed prior to service and there was no competent evidence to establish that his hernia problems were aggravated by or during the course of service. Since the RO's last denial in October 1995, the veteran has failed to present new and material evidence in support of his claim. For example, included in the veteran's Persian Gulf War registry examination dated in February 1995 is reference to the veteran's past medical history that includes right inguinal hernia repair. Also, the veteran provided a report from VA examination dated in July 1996 that mentions the veteran's history of right inguinal hernia repair. This evidence is cumulative, does not bear directly and substantially upon the specific matter under consideration, and is not, by itself or in connection with evidence previously assembled, so significant that it must be considered in order to fairly decide the merits of the claim. That is, the evidence does not bear directly and substantially on whether the veteran's post-service right inguinal hernia disability is causally related to his period of service. Accordingly, the evidence that the veteran submitted in an attempt to reopen his claim of service connection for right inguinal hernia is not new and material. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. ORDER Entitlement to service connection for a skin rash due to an undiagnosed illness is granted. Entitlement to service connection for low back disability manifested by pain is granted. New and material evidence sufficient to reopen the veteran's claim of entitlement to service connection for a right inguinal hernia repair has not been submitted; the appeal as to this issue is denied. WAYNE M. BRAEUER Member, Board of Veterans' Appeals