Citation Nr: 1749039	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  13-00 478A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to service connection for Lyme disease.

2.  Entitlement to service connection for a skin condition, to include psoriasis, and to include as secondary to Lyme disease.

3.  Entitlement to a rating in excess of 50 percent for major depressive disorder, with anxious distress.

4.  Entitlement to service connection for a medically unexplained chronic multi-symptom illness, to include chronic fatigue syndrome.

5.  Entitlement to service connection for fatigue as due to an undiagnosed illness.

6.  Entitlement to service connection for headaches as due to an undiagnosed illness.




REPRESENTATION

Veteran represented by:	Daniel G. Krasnegor, Attorney at Law


ATTORNEY FOR THE BOARD

Steven D. Najarian, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 2003 to December 2009, including service in Southwest Asia.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which denied entitlement to service connection for Lyme disease and for psoriasis.

In January 2016, the Board remanded the issue of entitlement to service connection for a psychiatric disorder, to include depression, mood disorder, and generalized anxiety disorder (GAD).  A rating decision of September 2016 granted service connection for major depression disorder, with anxious distress.  As the rating decision represents a complete grant of the benefit sought on appeal, the issue is no longer on appeal before the Board.  See Grantham v. Brown, 114 F.3d 116 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997).  In January 2017, the Veteran filed a notice of disagreement (NOD) with respect to the assigned rating.

This appeal was processed as a paperless claim using Legacy Content Manager Documents (formerly Virtual VA) and the Veterans Benefits Management System (VBMS).

The issues of entitlement to a rating in excess of 50 percent for major depressive disorder with anxious distress, entitlement to service connection for a medically unexplained chronic multi-symptom illness to include chronic fatigue syndrome, entitlement to service connection for fatigue as due to an undiagnosed illness, and entitlement to service connection for headaches as due to an undiagnosed illness are addressed in the REMAND portion of the decision below and are REMANDED to the agency of original jurisdiction (AOJ).


FINDINGS OF FACT

1.  Lyme disease is not shown at any time since the Veteran's claim was filed.

2.  In March 2016, prior to the promulgation of a decision in the appeal, the Veteran's representative notified the Board that a withdrawal of the appeal as to service connection for a skin condition is requested.


CONCLUSIONS OF LAW

1.  Lyme disease was not incurred in or aggravated by service.  38 U.S.C.A. §§  1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2016).

2.  The criteria for withdrawal of the appeal as to service connection for a skin condition have been met.  38 U.S.C.A. §§ 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2016).







REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016).  The VCAA applies to the instant claim.  The Board finds that VA has satisfied the notification and duty-to-assist provisions of the law and that no further action pursuant to the VCAA need be undertaken.

VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  See 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2016); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VA's duty to notify was satisfied by a letter sent to the Veteran in September 2011.

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim.  See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. §§ 3.159(c), (d) (2016).  This duty to assist contemplates that VA will help a claimant obtain records relevant to the claim and that VA will provide a medical examination or obtain a medical opinion when necessary to decide the claim.  See 38 C.F.R. § 3.159(c)(4) (2016).

The evidence of record includes the Veteran's service treatment records, service personnel records, post-service VA and private treatment records, and statements of the Veteran.  The Veteran affirms that there are no outstanding private medical records relating to Lyme disease.  See Veteran's filing of March 2016.  The Veteran underwent a VA examination in August 2016.  The examination report is adequate for purposes of the appeal.  See 38 C.F.R. § 4.2 (2016); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Veteran concedes that extensive testing indicates the absence of Lyme disease.  See Veteran's filing of March 2016.

The record reflects that the AOJ substantially carried out the Board's remand instructions of January 2016 as to the issue of entitlement to service connection for Lyme disease.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

Lyme Disease

The Veteran filed a service-connection claim for Lyme disease in May 2011.

In general, service connection will be granted for a current disability that resulted from an injury or disease that was incurred in or aggravated by active service.  See 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2016).  There must be a present disability, an 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 (the so-called "nexus" requirement).  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  See 38 C.F.R. § 3.303(d) (2016).

The claimant has the burden of establishing all elements of a service-connection claim.  See 38 U.S.C.A. § 5107(a) (West 2014); Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009).  The Board must give the claimant the benefit of the doubt on any issue material to the determination of a matter when there is an approximate balance of positive and negative evidence.  See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2016).  For a claim to be denied on the merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

A private treatment record of July 2010 made an assessment of "Lyme disease arthritis."  See July 2010 record of Dr. S. G.  In May 2011, the Veteran was seen at a VA medical center for an infectious disease consult.  The Veteran reported that, in February or March of 2010, he removed a tick from his right upper arm.  There was a circular rash on the arm which was itchy and lasted several weeks before resolving.  An infectious disease physician found that the serologies were negative and that Lyme disease could not be diagnosed based on the history provided by the Veteran.  See VA treatment record of May 2011.

A private treatment record of August 2010 indicates a negative test result for Lyme disease.  See August 2010 record of Dr. L. Z.  A VA treatment record of July 2011 lists Lyme disease as an active problem and indicates the Veteran's report that he had been bitten by a tick a few years ago.

The Veteran underwent a VA examination on August 2016.  The examiner determined on the basis of an in-person examination and review of the claims folder that no confirmatory data supported a diagnosis of Lyme disease.  Finding no current disability, the examiner offered a negative nexus opinion.

In July 2017, a private treating physician determined that the Veteran had not had a rash typical of Lyme disease, had tested negatively for Lyme disease, and did not show symptoms consistent with the pattern of Lyme disease.  The doctor's diagnosis was chronic fatigue syndrome.  See July 2017 record of Dr. J. B.

Entitlement to VA disability compensation for service-connected disease or injury requires a current disability.  See 38 U.S.C.A. §§ 1110, 1131 (West 2014); Degmetich v. Brown, 104 F. 3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The requirement of a current disability is satisfied if a disorder is diagnosed at the time a claim is filed or at any time during the pendency of an appeal, and service connection may be awarded even though a disability resolves itself prior to adjudication of the claim.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

As a layperson, the Veteran is competent to report experienced symptoms.  See Layno v. Brown, 6 Vet. App. 465 (1994).  Lay evidence can be competent and sufficient to diagnose a disability when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  When considering whether lay evidence is competent, the Board must determine on a case by case basis whether a claimant's particular disability is the type of disability for which lay evidence may be competent.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011).  In this case, the Veteran is not competent to diagnose Lyme disease, given the nature of the disease.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007).  Furthermore, no Jandreau exception applies.

Upon examination in August 2016, the Veteran was found not to have had Lyme disease at any time.  The Board places significant probative weight on the findings of the VA examination report.  The examiner reviewed the claims file and complete medical history to date and examined the Veteran.  In contrast, the assessment (not diagnosis) of Lyme disease arthritis made by the Veteran's private treatment provider in July 2010 was more cursory and provisional than the fully explained, considered opinion of the VA examiner.  The July 2017 record of Dr. J. B. also indicates that the Veteran has never had Lyme disease.

The Veteran, in acknowledgement of the medical findings, concedes that he does not have Lyme disease.  See Veteran's filing of March 2016.  He asks that the Board, in the context of his claim for service connection for Lyme disease, grant service connection for the symptoms of undiagnosed illness, headaches, and fatigue.  See Veteran's filing of May 2014.  Alternatively, he requests that the Board remand for further development and adjudication by the agency of original jurisdiction as to these symptoms.  See appellate briefs of January 2017 and August 2017.

The scope of a service connection claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009).  Separate diagnoses may constitute separate claims for adjudication purposes.  See Boggs v. Peake, 520 F.3d 1330, 1337 (Fed. Cir. 2008).  The Veteran already has pending before the RO claims relating specifically to the issues of undiagnosed illness, headaches, and fatigue.  Those issues will be remanded for the issuance of a statement of the case, as explained in the Remand section below.

The preponderance of the evidence is against finding that the Veteran has had Lyme disease at any point during the period under review.  In the absence of a current disorder, the claim must be denied.  Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply.  See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Psoriasis

In May 2011, the Veteran filed a service-connection claim for psoriasis.  The denial of the claim in February 2012 was appealed by a notice of disagreement filed in May 2012 and a VA Form 9 filed in January 2013.  In January 2016, the Board remanded the issue for further development.  By a filing of March 2016, the Veteran's representative indicated that the Veteran wished to withdraw his appeal seeking entitlement to service connection for a skin condition.

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  See 38 U.S.C.A. § 7105 (West 2014).  An appeal may be withdrawn as to any or all issues at any time before the Board promulgates a decision.  Withdrawal may be made by the appellant or by his or her authorized representative.  See 38 C.F.R. § 20.204 (2016).

Because the Veteran has withdrawn his appeal as to this issue, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal.






ORDER

Entitlement to service connection for Lyme disease is denied.

The appeal as to entitlement to service connection for psoriasis is dismissed.


REMAND

The Veteran seeks service connection for an "undiagnosed illness previously attributed to Lyme disease."  See VA Form 21-526EZ filed in May 2016 and June 2016.  A rating decision of August 2016 denied service connection for multisymptom disability, fatigue, and headaches.  The Veteran filed a notice of disagreement in January 2017.  To date, a statement of the case has not been issued by the RO.

In May 2012, the Veteran filed a claim seeking service connection for a psychiatric disorder, to include depression.  A rating decision of March 2013 denied the claim.  The Veteran appealed.  See notice of disagreement of April 2013; VA Form 9 of February 2014.  Following certification of the appeal to the Board in March 2015, a rating decision of September 2016 granted service connection for major depressive disorder with anxious distress and assigned an evaluation of 50 percent and an effective date of May 15, 2012.  In January 2017, the Veteran filed an NOD as to the evaluation of the disability.  To date, a statement of the case has not been issued by the RO.

The Veteran's filing of notices of disagreement as to the above four issues is noted in the Veterans Appeals Control and Locator System (VACOLS).  Where a notice of disagreement has been filed but an SOC has not been issued, the Board must remand the claim to the agency of original jurisdiction so that an SOC may be issued.  See Manlincon v. West, 12 Vet. App. 238 (1999).  The Board will remand the issues.


Accordingly, the case is REMANDED for the following action:

Issue a statement of the case as to entitlement to a rating in excess of 50 percent for major depressive disorder, with anxious distress; entitlement to service connection for a medically unexplained chronic multi-symptom illness, to include chronic fatigue syndrome; entitlement to service connection for fatigue as due to an undiagnosed illness; entitlement to service connection for headaches as due to an undiagnosed illness.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  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 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
G. A. Wasik
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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