Citation Nr: 0000711 Decision Date: 01/10/00 Archive Date: 01/19/00 DOCKET NO. 98-02 102A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for joint pain to include as due to undiagnosed illness. 2. Entitlement to service connection for rashes to include as due to undiagnosed illness. 3. Entitlement to service connection for disability manifested by memory problems, insomnia, and fatigue, to include as due to undiagnosed illness. REPRESENTATION Appellant represented by: The veteran's spouse WITNESSES AT HEARING ON APPEAL Appellant, and spouse ATTORNEY FOR THE BOARD C. Hickey, Counsel INTRODUCTION The veteran had active service from June 1990 to January 1994. He had service in the Southwest Asia theater of operations from August 5, 1990, to November 4, 1990, and he claims additional unverified service in the Southwest Asia theater of operations during the Persian Gulf war. This appeal to the Board of Veterans' Appeals (Board) arises from the September 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for joint pain, rashes, headaches, and disability manifested by memory problems, insomnia, and fatigue, all claimed as due to undiagnosed illness. By a rating action in January 1999 service connection was granted for disability characterized as tension headaches. Accordingly that issue is not before the Board. In his substantive appeal received in February 1998 , the veteran claimed 100 percent disability, which may be interpreted as a claim for non service-connected pension. This claim has not been developed and is not currently before the Board. However, the RO should respond appropriately to the veteran's claim. FINDINGS OF FACT 1. The veteran had active military service in the Southwest Asia theater of operations during the Gulf War. 2. The veteran has been diagnosed as having nummular eczema, seasonal dermatitis, tinea cruris, and folliculitis. 3. The record is devoid of competent evidence of a medical nexus between any currently diagnosed skin disorder and a disease or injury during active service. 4. The record does not include objective evidence of indications of chronic disability manifested by symptoms of skin rash due to an undiagnosed illness. 5. The veteran's allegation that he currently suffers from a chronic skin rash that was present in service of is otherwise related to service, or is related to an undiagnosed illness, is not supported by competent evidence that would render the claim plausible. CONCLUSION OF LAW The claim of entitlement to service connection for a chronic disability manifested by skin rash to include as resulting from an undiagnosed illness is not well grounded. 38 U.S.C.A. §§ 1110, 1117, 5107 (West 1991 and Supp. 1999); 38 C.F.R. §§ 3.303, 3.317 (1999); VAOPGCPREC 4-99 (May 3, 1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background Service medical records are largely unavailable. The report of the veteran's January 1994 separation examination reflects scattered ingrown hairs, noted especially on the arms and legs, and an infected, ingrown toe nail on the right first toe. A nonspecific abnormality of the feet also was noted on clinical evaluation, which revealed no psychiatric abnormalities, or abnormalities of the spine and musculoskeletal system. A hand written note on the report indicates the ingrown hair condition had resolved by April 1994. Also of record are private medical reports dated in September 1995 which reflect a three month history of rash in the groin area and tender lesions on the buttock, both of which had been unresponsive to treatment with ointment. On physical examination there was a sharply marginated erythema in the right and left groin areas. The veteran had several inflamed cystic lesions on the buttocks, and several areas of post inflammatory hyperpigmentation on the lower leg. It was also recorded that a "KOH" of the groin area was hypersensitive for hypha. The impression was tinea cruris, and folliculitis. The veteran completed a Persian Gulf War environmental hazard exposure questionnaire in February 1997, indicating his belief that he was probably exposed to environmental hazards by being in a smokey area, although not enveloped, and by consuming food and drink that could have been contaminated by oil or smoke. Specifically, the veteran believed he had been exposed to smoke from oil fires, cigarette smoke from others, diesel and or petrochemical fumes, other paints and or solvents and or petrochemical substances, as well as microwaves, and had skin exposure to diesel or other petrochemical fuel. He gave a history of eating food other than what was provided by the armed forces, bathing in water other than what was provided by the armed forces, and immunization against anthrax and botulism. The veteran reported the dates of his service in the Persian Gulf as July 1992 to January 1993. A Persian Gulf Registry examination was conducted in April 1997. The list of symptoms included a leg rash with onset reported to have been in March 1993. The pertinent diagnosis listed was seasonal dermatitis. On specific dermatological evaluation conducted at that time the examiner noted a history of persistent rash for more than a year on the right lower leg. The veteran also indicated that he had had a recurrent rash on the dorsal right hand over the previous year, most recently manifested a few months prior to examination. With regard to the hand rash, eruptions reportedly began with small red bumps and resolved within a few days, with treatment with topical Benadryl. At the time of examination the veteran had a subjective complaint of itching. Physical examination revealed an erythematous, scaly patch on the right pre-tibial area, measuring 10 centimeters by 10 centimeters. The dorsal right hand was clear. The diagnosis was nummular eczema. Accompanying the examination report is a photograph of the veteran's right lower leg which appears to reflect an area below the knee in which no hair is evident. When the veteran testified at his February 1998 personal hearing at the RO he related that he had first noticed a skin rash in April 1995, a little more than one year after separation from service. The symptoms were initially noted in the groin area later affecting his hand, and also, according to the veteran's wife, his lower legs. In response to questioning the veteran indicated that the reason he believed his rash was related to Persian Gulf service was because he had developed rashes during boot camp. At that time he had developed a full body rash after taking medication. The symptoms lasted one and one half weeks. The veteran believed the rash noted in boot camp reflected an allergic reaction. According to his testimony he had no further skin problems during service. The veteran also related that in 1995, along with the rash he had developed Herpes. His wife testified that she believed the skin rash could also have been due to inoculations the veteran received for Persian Gulf service. At the time of the hearing the veteran's current symptoms involved a hairless patch below the right knee, reportedly depicted in a photograph taken during his Persian Gulf Registry examination. His wife stated that there were additional smaller areas in the same condition. Legal Analysis Title 38 U.S.C.A. Section 1117 provides in pertinent part: (a) The Secretary may pay compensation under this subchapter to any Persian Gulf veteran suffering from a chronic disability resulting from an undiagnosed illness (or combination of undiagnosed illnesses) that (1) became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War; or (2) became manifest to a degree of 10 percent or more within the presumptive period prescribed under subsection (b) . (b) The Secretary shall prescribe by regulation the period of time following service in the Southwest Asia theater of operations during the Persian Gulf War that the Secretary determines is appropriate for presumption of service connection for purposes of this section. 38 U.S.C.A. § 1117 (West Supp. 1999). Implementing regulations, 38 C.F.R. § 3.317, provides that VA shall pay compensation to a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms including, but not limited to: (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; (13) menstrual disorders; provided that such disability became manifest 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 10 percent or more not later than December 31, 2001; and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. For purposes of this section, "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. Also for purposes of this section, 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. A chronic disability resulting from an undiagnosed illness referred to in this section shall be rated using evaluation criteria from 38 C.F.R., Part 4, for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. Compensation shall not be paid under this section, however, if there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; or if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or if there is affirmative evidence that the illness is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). For purposes of this section the term "Persian Gulf veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, and the Southwest Asia theater of operations includes 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, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(d). Initially, however, as with all claims for compensation, it must be determined whether the veteran has submitted a well- grounded claim. 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 an 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 VAOPGCPREC 4-99, at 9-10 (May 1999). The type of evidence necessary to establish a well-grounded claim as to each of these elements may depend upon the nature and circumstances of the particular claim. With respect to the second, and fourth elements, evidence that the illness is "undiagnosed" may consist of evidence that the illness cannot be attributed to any known diagnosis or, at minimum, evidence that the illness has not been attributed to a known diagnosis by physicians providing treatment or examination. The second and third elements may be established by lay evidence if the claimed signs or symptoms, or the claimed indications, respectively, are of a type which would ordinarily be susceptible to identification by lay persons. If the claimed signs or symptoms of undiagnosed illness or the claimed indications of chronic disability are of a type which would ordinarily require the exercise of medical expertise for their identification, then medical evidence would be required to establish a well-grounded claim. With respect to the third element, a veteran's own testimony may be considered sufficient evidence of objective indications of chronic disability, for purposes of a well-grounded claim, if the testimony relates to nonmedical indicators of disability within the veteran's competence and the indicators are capable of verification from objective sources. Medical evidence would ordinarily be required to satisfy the fourth element, although lay evidence may be sufficient in cases where the nexus between the chronic disability and the undiagnosed illness is capable of lay observation. Id, at 10. In this case the veteran has verified service in the Southwest Asia theater of operations during the Persian Gulf war, from August 5, 1990, to November 4, 1990. The record also reflects objective medical evidence of rash on multiple occasions subsequent to service. In each of those instances the examiner has assigned a diagnosis to the symptoms; these include tinea cruris, seasonal dermatitis, folliculitis, and nummular eczema. The veteran also reports recurrent symptoms of rash affecting his right hand which were not evident on any examination. Although the veteran's lay statements are sufficient to establish the manifestation of recurrent signs or symptoms, and objective indications of chronic disability, for purposes of well groundedness, the record reflects no competent evidence of a medical nexus between the reported symptoms and undiagnosed illness. While the General Counsel has noted that in some circumstances the relationship between symptoms and an undiagnosed illness is capable of proof by lay evidence alone, such is not the case in this instance, in which the etiology of the reported symptoms would not be capable of lay observation. Inasmuch as nothing in the record would indicate that the veteran, who is not a medical professional, is capable of providing a nexus opinion relating his reported hand rash to an undiagnosed illness, the claim for disability manifested by skin rash attributable to undiagnosed illness lacks competent supporting evidence and is not plausible. With regard to direct service connection a plausible or well grounded claim requires evidence of (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). The nexus requirement may be satisfied by a presumption that certain diseases manifesting themselves within certain prescribed periods are related to service. Caluza v. Brown, 7 Vet.App. 498. Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. Further, in determining whether a claim is well-grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet.App. 19, 21 (1993). In regard to establishing a well-grounded claim, the second and third Epps and Caluza elements (incurrence and nexus evidence) can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by (1) evidence that a condition was "noted" during service or during an applicable presumption period; (2) evidence showing postservice continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage, 10 Vet. App. at 496. Moreover, a condition "noted during service" does not require any type of special or written documentation, such as being recorded in an examination report, either contemporaneous to service or otherwise, for purposes of showing that the condition was observed during service or during the presumption period. Id. at 496-97. However, medical evidence of noting is required to demonstrate a relationship between the present disability and the demonstrated continuity of symptomatology unless such a relationship is one as to which a lay person's observation is competent. Id. at 497. In this regard a well-grounded claim of continuity of symptomatology generally requires medical nexus evidence between the continuous symptomatology and the current claimed condition. McManaway v. West, No. 97-280 (U. S. Vet. App. Sept. 29, 1999). In the case of a disease only, service connection also may be established under section 3.303(b) by (1) evidence of the existence of a chronic disease in service or of a disease, eligible for presumptive service connection pursuant to statute or regulation, during the applicable presumption period; and (2) present disability from it. Savage, 10 Vet. App. at 495. Either evidence contemporaneous with service or the presumption period or evidence that is post service or post presumption period may suffice. Id. Inasmuch as the medical records, both private and VA, reflect recurrent skin symptoms with diagnoses of nummular eczema, seasonal dermatitis, eczema and folliculitis, the evidence presents the first element of a well-grounded claim for service connection on a direct basis, a currently diagnosed disability. However, available service medical records do not reflect any pertinent symptoms. At the time of his physical examination for separation from service, the only skin related symptoms noted were ingrown hairs which were resolved by March 1994, three months after separation. In fact, at his personal hearing the veteran testified that the only rash he experienced on active duty resolved within a short period, without developing into a chronic condition during service. He has not presented any evidence or claim of a postservice continuity of symptomatology, inasmuch as he testified that he first noted the current symptoms in April 1995, more than one year after service. Furthermore, there is no medical evidence or opinion that any current skin disorder is directly related to an injury or disease noted in service, to include alleged exposure to the various substances claimed by the veteran. Although evidentiary assertions by the veteran must be accepted as true for purposes of determining whether a claim is well- grounded, the exception to this principle is where the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet.App. 19, 21 (1993). As a lay person, the veteran is not qualified to provide a medical opinion relating his skin disorder to service. See, Moray v. Brown, 5 Vet.App. 211 (1993); Grottveit v. Brown, 5 Vet.App. 91 (1993); Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Accordingly, the claim for service connection for a skin disability is not supported by competent evidence to render the claim well grounded. ORDER The claim for service connection for a skin disability on a direct basis and as due to undiagnosed illness is denied as not well-grounded. REMAND On preliminary review of the record it is noted that a list of outpatient treatment records dated in 1998 reflects treatment and evaluation at the VA Medical Center (VAMC) in Northampton, Massachusetts from September 1997 through December 1997. The list refers to treatment on at least a dozen different dates for musculoskeletal, neurological, and psychological symptoms. However, the claims folder includes only a one-page consultation sheet from the period between September 1997 and November 1997. In this regard the U. S. Court of Appeals for Veterans Claims (Court) has held that VA adjudicators are charged with constructive notice of documents generated by VA. Bell v. Derwinski, 2 Vet. App. 611 (1992). VA is charged with such notice even if the documents have not been made part of the record in a claim for benefits. Therefore, appellate review of the issues of service connection for joint pain and disability manifested by memory problems, insomnia, and fatigue, will be deferred pending further development on remand. Accordingly, the case is REMANDED for the actions listed below. The law requires full compliance with all orders in this remand. Stegall v. West, 11 Vet.App. 268 (1998). Although the instructions in this remand should be carried out in a logical chronological sequence, no instruction may be given a lower order of priority in terms of the necessity of carrying out the instruction completely. 1. The RO should contact the VAMC at Northampton, Massachusetts and request copies of the medical records reflecting treatment from September 1997 through December 1997, for association with the claims folder. 2. Following the completion of the above requested development, the RO should review the veteran's claims on the basis of all evidence of record. In the event that it is determined that the veteran has submitted one or more well grounded claims for service connection, any additional development that is indicated should be conducted prior to a merits review of the claim(s) on the basis of all evidence and the applicable law and regulations. If any action taken remains adverse to the veteran, he and his representative should be provided a supplemental statement of the case and the applicable time to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The appellant need take no action until otherwise notified. The purpose of this REMAND is to obtain additional information and to ensure due process of law. No inference should be drawn regarding the final disposition of the claim as a result of this action. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. G. H. SHUFELT Member, Board of Veterans' Appeals