Citation Nr: 18131198
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 15-01 349
DATE:	August 31, 2018
ORDER
Service connection for fibromyalgia is granted.
Service connection for a disability manifested by fatigue, to include chronic fatigue syndrome (CFS), is denied.
Service connection for seborrheic dermatitis of the scalp is granted.
REMANDED
Entitlement to service connection for hemorrhoids is remanded.
Entitlement to service connection for a skin disorder other than seborrheic dermatitis of the scalp (claimed as eczema of the back, legs, and elbows, and pompholyx hydrosis of the feet) is remanded.
Entitlement to service connection for residuals of a staph infection of the nose/bilateral nares is remanded.
Entitlement to an initial compensable evaluation for residuals scars is remanded.
Entitlement to an initial compensable evaluation for tension headaches is remanded.
Entitlement to an initial compensable evaluation for varicose veins of the left leg is remanded.
Entitlement to an initial compensable evaluation for herpes simplex, type 1, is remanded.
FINDINGS OF FACT
1. The Veteran had active military service in Southwest Asia during the Persian Gulf War era and currently is diagnosed with fibromyalgia with a chronic pain syndrome.
2. The has does not have a diagnosis of CFS or any other fatigue disorder, and does not have a current disability manifested by fatigue.
3. The Veteran’s current seborrheic dermatitis of the scalp was not incurred in service.
CONCLUSIONS OF LAW
1. The criteria for service connection for fibromyalgia with a chronic pain syndrome are met.  38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317.
2. The criteria for service connection for a disability manifested by fatigue, to include CFS, are not met.  38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317.
3. The criteria for service connection for seborrheic dermatitis of the scalp are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active duty service from June 1990 to June 2011, with at least some service in Southwest Asia (Kuwait) in 1994 during the Persian Gulf War era.  This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).  
Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  “To establish a right to compensation for a present disability, a Veteran 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 or aggravated during service”—the so-called “nexus” requirement.”  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
Fibromyalgia and CFS
Service records show that the Veteran had service in the Southwest Asia theatre of operations and, in turn, is considered a Persian Gulf War veteran pursuant to 38 C.F.R. § 3.317.  
Service connection may be established on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from undiagnosed illness that became manifest either during active 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, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.  38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1) (VA has issued an interim final rule extending this date to December 31, 2021). 
A “qualifying chronic disability” for purposes of 38 U.S.C. § 1117 is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or irritable bowel syndrome (IBS)) that is defined by a cluster of signs or symptoms, or (C), any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection.  38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B). 
Objective indications of “chronic disability” include both “signs,” in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification.  To fulfill the requirement of chronicity, the illness must have persisted for a period of six months.  38 C.F.R. § 3.317(a)(2), (3).  Signs or symptoms that may be manifestations of undiagnosed 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).
The Veteran claimed CFS and the Agency of Original Jurisdiction (AOJ) also construed that claim as a claim for a chronic pain disorder.  
A review of the Veteran’s service treatment records documents does not disclose a diagnosis of either a chronic pain disorder, fibromyalgia, or CFS.  Prior to the Veteran’s discharge from service, however, he filed his claim for VA benefits and underwent a VA examination in April 2011, at which time he had chronic fatigue for 10 years; he specifically indicated he had been diagnosed with CFS 10 years ago and that the condition had progressed gradually.  He also reported a frequent sore throat, generalized muscle aches or weakness, fatigue lasting more than 24 hours or longer after exercise, migrating joint pain, depression, anxiety, forgetfulness, sleep disturbance, an inability to concentrate, confusion, and headaches.  Regarding fatigue specifically, the Veteran reported nearly constant fatigue, that was debilitating and limiting in his daily activities and had lasted for at least 6 months; he reported his activity level was reduced by 50 percent or more.  
After a full and comprehensive examination, the examiner noted that there was no chronic fatigue diagnosis because there was no pathology to render a diagnosis.  The examiner explained that the Veteran does not meet the criteria for a diagnosis of CFS, as he does not have both primary criteria or at least 6 of the 10 secondary criteria; regarding secondary criteria, the Veteran only had fatigue lasting 24 hours or longer after exercise, migratory joint pains, generalized muscle aches or weakness, headaches (and the severity or pattern of the headaches is different from the premorbid state), and sleep disturbance.  The Board reflects that examiner did not address whether the Veteran had a diagnosis of a chronic pain disorder or fibromyalgia at that time.  
The Veteran discharged from service in June 2011, and a review of his subsequent VA treatment records since that time demonstrates continued complaints of a chronic pain disorder treated with Lyrica.  The Veteran was diagnosed in a December 2012 VA primary care records with Fibromyalgia with Chronic Pain Syndrome.  
In this case, as the Veteran is shown to have a diagnosis of fibromyalgia and is shown to have service in Southwest Asia during the Persian Gulf War era, service connection for fibromyalgia with a chronic pain syndrome is granted on a presumptive basis under 38 C.F.R. § 3.317 at this time.  See 38 C.F.R. § 3.317(a)(2)(i)(B).  
Turning to the Veteran’s fatigue/CFS claim, the Board acknowledges the Veteran’s complaints and statements of record regarding his fatigue symptoms, his own diagnosis of CFS, and their relationship to service.  The Veteran, however, is not competent to render a diagnosis of a fatigue disorder, to include CFS, or otherwise opine as to a nexus in this case.  That is because such diagnosis and nexus are complex medical questions beyond the competence of a non-expert, or layperson, and the Veteran has not established expertise in medical matters.  
Additionally, a review of the Veteran’s post-discharge VA treatment records does not disclose any diagnosis of CFS or any other fatigue disorder throughout the appeal period.  The Veteran is not shown to have any CFS diagnosis during military service and there was not a diagnosis of CFS, any other fatigue disorder, or any other disability manifested by fatigue found during the April 2011 VA examination.  The April 2011 VA examiner specifically contemplated the Veteran’s complaints and fatigue symptoms and indicated that a diagnosis of CFS was not appropriate as the Veteran did not meet the criteria.  
The Board finds the April 2011 VA examination and the subsequent medical evidence of record to be the most probative evidence of record; such evidence is not refuted by any other evidence of record.  Significantly, the Veteran has not submitted any subsequent medical evidence which indicates that any medical provider has ever diagnosed him with CFS, any other fatigue disorder, or any medically unexplained chronic multisymptom illness or chronic undiagnosed disability manifested by fatigue.  
Accordingly, as there is no evidence of a current disability manifested by fatigue, or otherwise diagnosed as CFS or any other fatigue disorder, the Board must find that service connection for CFS must be denied at this time for the lack of a current disability; the Veteran’s appeal as to that issue must therefore be denied at this time on the basis of the evidence of record at this time.  See 38 C.F.R. §§ 3.102, 3.303, 3.317; McClain v. Nicholson, 21 Vet. App. 319 (2007) (the requirement that a current disability be present is satisfied “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim . . . even though the disability resolves prior to the Secretary's adjudication of the claim.”); Brammer v. Derwinski, 3 Vet. App. 223 (1995) (Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability).
 
Seborrheic Dermatitis of the Scalp
On appeal, the Veteran has indicated that he had a skin disorder of the scalp during service and that such has been ongoing since that time.  
A March 2010 service treatment record noted that the Veteran had seborrheic dermatitis of the scalp and he was prescribed tarsum shampoo at that time.  
In his April 2011 VA examination, the Veteran reported having skin issues of the scalp for 8 to 16 years, including exudation, ulcer formation, itching, and crusting of the scalp; he denied any shedding.  His symptoms occurred constantly, although he denied any treatment at that time.  After examination, the examiner noted that there was no pathology to render a diagnosis.  
After discharge from service, in a December 2013 VA primary care record, the Veteran was diagnosed with seborrheic dermatitis of the scalp and he was prescribed ketoconazole shampoo for use 2 or 3 times a week as necessary.  
Based on the foregoing evidence, the Veteran clearly was diagnosed with and treated for seborrheic dermatitis of the scalp both during and after military service.  Although there was no manifestation present on examination in April 2011, the Board finds that the Veteran’s statements that such has been chronic and continuous since military service to be competent, probative, and highly probative.  
Accordingly, resolving reasonable doubt in his favor, the Board finds that the evidence of record is at least in equipoise with respect to whether the Veteran’s current seborrheic dermatitis of the scalp was incurred in service.  Service connection is therefore warranted for seborrheic dermatitis of the scalp at this time based on the evidence of record.  See 38 C.F.R. §§ 3.102, 3.303.  In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.
REASONS FOR REMAND
Initially, respecting the Veteran’s tension headaches, the Board reflects that the last VA examination which purported to address the severity of that condition was in April 2011, prior to the Veteran’s discharge from service.  The Board reflects that VA examiner did not address any of the criteria necessary to adequately evaluate the Veteran’s headache disability, particularly the frequency and severity of his headaches.  Accordingly, the increased evaluation claim for headaches is remanded in order to obtain another VA examination that adequately addresses the severity of that disability.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  
Likewise, service connection was established for “residuals scars,” in the June 2012 rating decision.  The anatomical location of these “residual scars” is not noted anywhere in the record.  The April 2011 VA examiner did not provide necessary information about the scars, to include their location, type of scar, area, and whether such were painful or unstable.  In the July 2018 informal hearing presentation, the Veteran’s representative asserts that several scars are painful.  A remand is therefore also necessary in order to obtain an adequate VA examination that addresses those deficiencies with respect to the Veteran’s residual scars disability.  
Turning to the Veteran’s herpes simplex and varicose veins claims, the last VA examination for those disabilities—indeed, all of his disabilities for which he is claimed an increased evaluation—was in April 2011, prior to his discharge from service.  In his January 2015 substantive appeal, the Veteran and his representative asserted that the Veteran’s disabilities have all worsened since his last VA examination and requested that the Board remand for a another VA examination in this case.  A remand of the varicose veins, herpes simplex, headaches, and residual scars issues is therefore necessary in order to obtain VA examinations that adequately address the current severity of those disabilities.  See Palczewski v. Nicholson, 21 Vet. App 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995).
As to the other skin disorders claim, the Veteran is shown to have treatment during service for skin disorders, particularly of his feet, and he is also shown to have current treatment in his VA treatment records for skin disorders, notably with topical creams.  The Veteran has asserted during the appeal period that his skin disorders have been ongoing since military service.  
Although the April 2011 VA examiner found that the Veteran did not have any skin disorders at that time, the Veteran is shown to have skin disorders, including foot dermatitis, in the December 2013 VA treatment record.  Accordingly, as there is a current disability and evidence of an in-service manifestation, the Board finds that the low threshold for obtaining a medical opinion in this case is warranted.  See 38 U.S.C. § 5103A(d) (2012); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).
Likewise, the Veteran is shown to have a possible staph infection and treatment of his left nostril with topical medication in October 2009 during service.  The Veteran’s VA treatment records document that he is prescribed topical medication for his nose and the Veteran’s representative asserted in the July 2018 informal hearing presentation that the Veteran had ongoing treatment for his nose since military service.  Although the April 2011 VA examiner found no diagnosis related to his nose at that time, the Board also finds that a remand is necessary at this time to obtain another VA examination related to the residuals of a staph infection of the nose/bilateral nares claim.  See Id.  
As to the Veteran’s hemorrhoids claim, a November 2010 service treatment record documents that the Veteran was shown to have a history of hemorrhoids in 1997 and that he continued to use Preparation H at that time.  Although the Veteran was not shown to have any internal or external hemorrhoids in the April 2011 VA examination, the Veteran and his representative have asserted that he has continued to have problems with hemorrhoids since service, including inflammation at least 3 to 4 times a year that he treats with over-the-counter medications.  Based on the Veteran’s statements of record, the Board finds that a remand is necessary in order to obtain another VA examination to ascertain whether the Veteran has any hemorrhoids or residuals thereof related to military service.  See Id.
Finally, on remand, the Board also finds that any outstanding VA treatment records should also be obtained.  See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (where the Veteran “sufficiently identifies” other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information); Bell v. Derwinski, 2 Vet. App. 611 (1992).
The matters are REMANDED for the following action:
1. Obtain any and all VA treatment records not already associated with the claims file from the Richmond VA Medical Center, or any other VA medical facility that may have treated the Veteran and associate those documents with the claims file.
2. Ensure that the Veteran is scheduled for a VA examination with an appropriate examiner in order to determine whether any skin disorders other than seborrheic dermatitis of the scalp, to include of his back, legs, elbows, and feet, are related to his service.  The claims folder must be made available to and be reviewed by the examiner.  All tests deemed necessary should be conducted and the results reported in detail.  
Following examination of the Veteran and review of the claims file, the examiner should state all skin disorders other than seborrheic dermatitis of the scalp found, to include any eczema, dermatitis, or pompholyx hydrosis of the back, legs, elbows, and feet.  For any skin disorders other than seborrheic dermatitis of the scalp found, the examiner should opine whether such at least as likely as not (50 percent or greater probability) began in service or is otherwise the result of military service.  The examiner must specifically address the Veteran’s statements regarding onset in service and continuity of symptomatology since discharge from service.  All findings should be reported in detail and all opinions must be accompanied by a clear rationale.
3. Ensure that the Veteran is scheduled for a VA examination with an appropriate examiner in order to determine whether any residuals of a staph infection of his nose/bilateral nares is related to his service.  The claims folder must be made available to and be reviewed by the examiner.  All tests deemed necessary should be conducted and the results reported in detail.  
Following examination of the Veteran and review of the claims file, the examiner should state any and all residuals of a staph infection of the nose/bilateral nares found, to include any skin disorder of the nose.  If any residuals are found, the examiner should opine whether such at least as likely as not (50 percent or greater probability) began in service or is otherwise the result of military service.  The examiner must specifically address the Veteran’s statements regarding onset in service and continuity of symptomatology since discharge from service.  All findings should be reported in detail and all opinions must be accompanied by a clear rationale.
4. Ensure that the Veteran is scheduled for a VA examination with an appropriate examiner in order to determine whether any hemorrhoids or residuals thereof are related to his service.  The claims folder must be made available to and be reviewed by the examiner.  All tests deemed necessary should be conducted and the results reported in detail.  Following examination of the Veteran and review of the claims file, the examiner should state whether the Veteran has hemorrhoids or any residuals thereof.  If so, the examiner should then opine whether such at least as likely as not (50 percent or greater probability) began in service or is otherwise the result of military service.  The examiner must specifically address the Veteran’s statements regarding onset in service and continuity of symptomatology since discharge from service.  All findings should be reported in detail and all opinions must be accompanied by a clear rationale.
5. Ensure that the Veteran is scheduled for a VA examination in order to determine the current severity of his tension headaches.  The claims file must be made available to and be reviewed by the examiner in conjunction with the examination.  Specifically, the examiner should discuss the frequency of the Veteran’s attacks, whether they are characteristic prostrating attacks, and the impact on his economic adaptability, as appropriate.  All findings should be reported in detail and all opinions must be accompanied by a clear rationale.
6. Ensure that the Veteran is scheduled for a VA examination in order to determine the current severity of his service-connected residuals scars.  The claims file must be made available to and be reviewed by the examiner in conjunction with the examination.  Specifically, the examiner should discuss which scars the Veteran has and which are service-connected.  The examiner should provide the location of such scars, the area of such scars, in square inches or square centimeters, and whether each service-connected scar is either painful, unstable, or both; the examiner should additionally address any of the characteristic of disfigurement of the head, face and neck, as appropriate.  All findings should be reported in detail and all opinions must be accompanied by a clear rationale.
7. Ensure that the Veteran is scheduled for a VA examination in order to determine the current severity of his varicose veins of the left leg.  The claims file must be made available to and be reviewed by the examiner in conjunction with the examination.  Specifically, the examiner should discuss the presence and frequency of any edema, ulceration, induration, stasis pigmentation, eczema, pain, or aching, as well as any relief by elevation or compression hosiery.  All findings should be reported in detail and all opinions must be accompanied by a clear rationale.
8. Ensure that the Veteran is scheduled for a VA examination in order to determine the current severity of his service-connected herpes simplex, type 1.  The claims file must be made available to and be reviewed by the examiner in conjunction with the examination.  Specifically, the examiner should discuss the total body and exposed body areas affected, as well as whether the Veteran uses systemic immunosuppressive drugs or corticosteroids to treat his herpes simplex; the examiner should specifically discuss whether Valtrex is an immunosuppressive drug or corticosteroids, rather than an antiviral drug.  The examiner should additionally indicate whether there are any scars associated with the Veteran’s herpes simplex, and if so the location of such scars, the area of such scars in square inches or square centimeters, and whether each of those scars is either painful, unstable, or both; the examiner should additionally address any of the characteristic of disfigurement of the head, face and neck associated with the Veteran’s herpes simplex, as appropriate.  All findings should be reported in detail and all opinions must be accompanied by a clear rationale.

 
JAMES G. REINHART
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Peters, Counsel 

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