Citation Nr: 23030073 Decision Date: 05/23/23 Archive Date: 05/23/23 DOCKET NO. 14-26 920 DATE: May 23, 2023 ORDER Entitlement to service connection for a skin condition, claimed as shingles and hives, is denied. FINDINGS OF FACT 1. The weight of the evidence is against finding that the diagnosed skin conditions are related to the Veteran's active-duty service. 2. The Veteran's skin conditions are not secondary to service-connected disabilities. CONCLUSION OF LAW The criteria to establish service connection for a skin condition are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from February 1992 to December 1994. This matter comes to the Board of Veterans' Appeals (Board) on appeal from July 2012 and October 2012 decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Board initially remanded this matter in April 2018, March 2020, and March 2021 for further development. The Board then denied the Veteran's skin condition in a July 2021 decision. In a June 2022 Court of Appeals for Veterans Claims (Court) Joint Motion for Remand (JMR), the Court vacated the July 2021 decision and remanded the case because the April 2021 examiner did not address the medical literature provided by Veteran's representative in a March 2020 written brief presentation, nor thoroughly addressed the Veteran's contentions regarding the impact of a stress-related psychiatric disorder on her recurring shingles, as well as the effect of any aggravation of her service-connected disabilities on her immune system. The Board then remanded the issue in October 2022 for further development. The RO obtained an opinion in November 2022. In consideration of the appeal, the Board is satisfied there was substantial compliance with the remand directives and will proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has recharacterized the Veteran's claims for hives and shingles more broadly to skin condition in order to clarify the nature of the benefits sought and ensure complete consideration of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). Service Connection - Applicable Laws and Regulations Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence showing (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Also, according to 38 C.F.R. § 3.310, service connection may be granted on a secondary basis for disability that is due to, the result of, or aggravated by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Service connection may be granted for a Persian Gulf Veteran for a qualifying chronic disability is a chronic disability that may result from an undiagnosed illness or a medically unexplained chronic multi-symptom illness (MUCMI). 38 C.F.R. § 3.317(a)(2)(i). The term chronic means that the disability has existed for 6 months or more, to include intermittent episodes of improvement or worsening over that period. 38 C.F.R. § 3.317(a)(4). An undiagnosed illness requires that the illness, by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(4). There is no burden on a Veteran to demonstrate that a medical professional has eliminated all possible diagnoses before the Veteran can be compensated for a disability stemming from an undiagnosed illness. Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014). In addition to MUCMIs, the recent passage of the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act), establishes presumption of in-service exposure to burn pit and other environmental hazards for service in the Persian Gulf (known as the Southwest Asia theatre of operations). The PACT Act also establishes presumption for certain illnesses and cancers, as due to in-service exposure to burn pits and other Persian Gulf environmental hazards. Pub. L. 117-168 (August 10, 2022). A claimant bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary gives the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Thus, the benefit of the doubt doctrine applies if the competing evidence is in 'approximate balance,' and when the evidence is not in equipoise but nevertheless is in approximate balance. Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021). However, the benefit-of-the-doubt rule does not apply when the evidence is not in approximate balance or nearly equal, and the evidence persuasively favors one side or the other. Lynch at 781-82. Factual history Service treatment records indicated a rash on April 13, 1992. In the November 1994 report of medical history, however, the Veteran denied skin diseases. The Veteran stated that in 2009 she developed a painful rash on the right side of her face and neck. She stated that after several weeks it went away. She stated that the next year it came back and she saw a doctor. She stated that she was diagnosed with shingles, given Valtrex, and it resolved. However, she stated that it would come back about once a year in the same. She stated that one year it came back several times. She stated that, about 2019, she began taking daily acyclovir. She stated that since then she had only one outbreak and that was when she had traveled and forgot to take her acyclovir. See April 2021 Skin Diseases examination report. In January 2012 and February 2012 lay statements, the Veteran noted a possible link between her skin conditions and possible exposure to pathogens in Southwest Asia. The RO afford the Veteran an examination in August 2012. The August 2012 examiner provided Gulf War opinions. The August 2012 examiner opined that there were not any diagnosed illnesses for which no etiology was established. In March 2016 VA treatment records, the Veteran stated that she had episodes of shingles every one to two years. The March 2016 history taken by the examiner indicated that the outbreak would occur on right side of the Veteran's face intemporal area near her eye. The Veteran reported she began having what she believes were tension headaches in June 2015, but then progressed to sharp pain generalized on the right side of her head. The Veteran described sensitive spots and was placed on Lyrica with some benefit. The Veteran's understanding was that Dr. M in Neurology believed she may have developed neuralgia causing the headaches due to chronic shingles over several years. In March 2016 VA treatment records, the Veteran also stated that since 2008 she had broken out in hives and rashes when stressed, in addition to having general fatigue and malaise. The Veteran then testified before a Veterans Law Judge (VLJ) in November 2017. In the November 2017 hearing, the Veteran testified that her shingles might be related to immune system disorder. The Veteran testified that an issue with chronic fatigue syndrome is the immune system. The Veteran also testified that she went to an allergist at the VA, and she noted after they did a lot of allergy testing that she did not think it was an outside allergen but that she thought it might be something related to the anxiety. In February 2018, the Board offered the Veteran an opportunity for another hearing since the Veterans Law Judge who conducted the November 2017 hearing was no longer employed by the Board. The Veteran declined an opportunity for an additional hearing in a correspondence, received March 2018. In July 2019, the RO afforded the Veteran an examination. The July 2019 examiner diagnosed the Veteran with urticaria, resolved, and recurrent zoster (shingles). The July 2019 examiner also provided Gulf War, direct, secondary, and aggravation opinions. The examiner found that there were no diagnosed illnesses for which no etiology was established. The examiner also found that there were no additional signs and/or symptoms that might represent an undiagnosed illness or diagnosed medically unexplained chronic multisymptom illness. The July 2019 examiner explained that recurrent shingles was a disease with a clear and specific etiology and diagnosis. The July 2019 examiner stated that there was no medical evidence that the Veteran's condition was related to a specific exposure event experienced by the Veteran during service in Southwest Asia. The July 2019 examiner also opined that given the objective evidence, it was her opinion that the Veteran had a current diagnosis of recurrent shingles that was less likely than not (less than 50% probability) incurred in or caused by (the) military during service, an acquired psychiatric condition, or aggravated by an acquired psychiatric condition. The July 2019 examiner further opined that given the objective evidence, it was her opinion the Veteran had a diagnosis of urticaria, resolved, that was less likely than not (less than 50% probability) incurred in or caused by the military during service, nor by the Veteran's acquired psychiatric condition, nor aggravated by an acquired psychiatric condition. The July 2019 examiner further opined that urticaria, resolved, was a diagnosable chronic multi-symptom illness with a partially explained etiology (disorder resulting from an interaction among a number of factors). The July 2019 examiner explained that there was no medical evidence that the Veteran's condition was related to a specific exposure event experienced by the Veteran during service in Southwest Asia. In April 2020, the RO requested secondary service connection, to include non-service-connected condition aggravation, medical opinions. The April 2020 examiner opined that after a review of the medical and scientific evidence in JLV, VBMS, CPRS, and CAPRI, and as per UpToDate, herpes zoster, also known as shingles, was less likely than not due to, or the result of, or aggravated beyond its natural progression, or the result of, the Veteran's chronic fatigue syndrome, fibromyalgia, migraines and or/psychiatric disorders (stress). The April 2020 examiner reasoned that, according to UpToDate, herpes zoster results from reactivation of latent varicella-zoster virus (VZV) that gained access to sensory ganglia during varicella. The April 2020 examiner explained that recurrent zoster occurs in 1 to 6 percent of the population and occurs many years after initial Varicella infection. Additionally, the April 2020 examiner stated that it occurs in occurs more frequently in immunocompromised patients and transplant patients. The April 2020 examiner reasoned that the Veteran's listed service-connected conditions are none of these. The April 2020 examiner noted that there was an increase in incidence in patients with autoimmune diseases, such as the Veteran's nonservice connected IBS, who are treated with glucocorticoids and other therapeutics. The April 2020 examiner concluded that, unfortunately, there was no medical or scientific evidence to support the claim. Due to the unclear rationale in the April 2020 opinion, the RO requested additional secondary service-connection and aggravation opinions in April 2021 between the Veteran's skin conditions and her service-connected chronic fatigue syndrome (CFS), headaches, fibromyalgia, migraines, and psychiatric disorder. An M.D./M.P.H. VA examiner (hereafter "April 2021 examiner") reviewed the Veteran's file and provided opinions. The April 2021 examiner diagnosed the Veteran with recurrent shingles, asymptomatic. The April 2021 examiner reasoned that it was well recognized that shingles was caused by a reactivation of the chickenpox virus. The April 2021 examiner further reasoned that the Centers for Disease Control (CDC) stated there was a one in three chance anyone with that virus may develop shingles at some time. The April 2021 examiner further stated that the reason only one in three get shingles and some get recurrent shingles was unknown. The April 2021 examiner further stated that although it was speculated that stress may be one of the causes, no current good studies had shown a direct cause, nor that stress directly aggravates shingles or recurrent shingles. The April 2021 examiner further stated that it was also thought that stress may adversely affect the immune system, but no current good studies showed that stress was a cause of shingles, nor that stress caused an aggravation of shingles or recurrent shingles. The April 2021 examiner further explained that the Veteran's contention that her psychiatric disorder or other service-connected disabilities caused or aggravated her shingles was a generalization with several assumptions - that her service-connected disabilities have decreased her immune system and that this decrease in her immune system had resulted in the recurrence of her shingles. The April 2021 examiner explained that although studies suspect that chronic stress decreased the immune system, by how much what are the consequences remained unknown. Therefore, the April 2021 examiner again reiterated that there were no good studies that have concluded that stress-related disorders, or stress, caused shingles or recurrent shingles. Next, regarding the association between the Veteran's shingles and fibromyalgia and migraines, the April 2021 examiner stated that in medical literature, many illnesses were shown to be associated with other diseases. However, the April 2021 examiner continued, since there are so many variables, association does not prove causation. As an example, the April 2021 examiner gave the example of vasectomies, which were associated with prostate cancer. The April 2021 examiner explained that further studies showed that vasectomies were not an actual cause. The April 2021 examiner reasoned that no good current studies have concluded that fibromyalgia or migraines were a cause of shingles. In November 2022, the RO obtained an addendum opinion. The November 2022 examiner provided negative direct, secondary, and aggravation opinions. For direct service connection, the November 2022 examiner reasoned that the Veteran's medical records were silent for complaints of urticaria or shingles while on active duty to create a nexus to the in-service illness, event or injury during service. For secondary service connection, to include aggravation, the November 2022 examiner stated that the Veteran's private literature from website, "https://www.verywellhealth.com/allodynia-definition-and-types-fibromyalgia-715929" was reviewed. The November 2022 examiner stated that this website noted, "Allodynia is thought to be a hypersensitive reaction to stimuli. Research suggests it may result from central sensitization, which is believed to be an underlying mechanism of fibromyalgia, ME/CFS, and several other conditions. "Central" indicates the central nervous system (brain and spinal cord) and "sensitization" means that it's become extra sensitive." The November 2022 examiner stated that the website did not give evidence of a pathophysiological connection between chronic fatigue syndrome, fibromyalgia and migraine headaches causing the development of shingles and the Veteran's resolved urticaria (resolved since 2015). The November 2022 examiner stated that review of the Veteran's service treatment records showed, May 3, 2016, "- hx of recurrent shingles, 7-8 bouts 2000-2009." The November 2022 examiner further stated that the Veteran's medical records from February 24, 2016 note, "The neurocognitive pattern as well as the psychological profile and mild evidence of white matter changes on imaging are clearly consistent with her report of symptoms since 2008 of onset of CFS, and what has been found in individuals with CFS. Chronic fatigue began after numerous years of episodes of shingles." The November 2022 examiner stated that the Veteran's medical records showed that the Veteran's shingles diagnosis predated her diagnosis of chronic fatigue syndrome and fibromyalgia by many years. The November 2022 examiner therefore reasoned that the Veteran's chronic fatigue syndrome and fibromyalgia could not have caused her recurrent shingles if the Veteran's symptoms of chronic fatigue syndrome and fibromyalgia did not start until 2008 and the Veteran has had recurrent episodes of shingles since 2000. The November 2022 examiner further reasoned that the Veteran had a history of migraine headaches starting in the 1990s; however, migraine headaches have not been associated with the development of shingles. The November 2022 examiner further stated that the Veteran's medical article did not show a link between migraine headaches and the development of shingles. For aggravation, the November 2022 examiner opined that it was less likely than not that the Veteran's claimed skin conditions, to include shingles, hives, urticaria, was aggravated beyond its natural progression by the Veteran's disabilities, to include chronic fatigue syndrome, fibromyalgia and migraines. In addition to the negative secondary service connection rationale from above, the November 2022 examiner reasoned that chronic fatigue syndrome and fibromyalgia and migraine headaches have not been shown to aggravate shingles beyond its natural progression. The November 2022 examiner further reasoned that Veterans urticaria was documented to have been resolved in 2015. The November 2022 examiner concluded that the Veteran's medical records currently did not show evidence that the Veteran's shingles/resolved urticaria had been aggravated beyond its natural progression by chronic fatigue syndrome, fibromyalgia and migraines. The Persian Gulf Veteran - Sec. 1117 memo, received January 27, 2023, stated that the Veteran served in the Southwest Asia theater of operations, as defined by 38 C.F.R. § 3.317(e)(2), for at least one day between August 1, 1991, through September 10, 2001. Entitlement to service connection for a skin condition, claimed as shingles and hives The Veteran asserts that she has shingles and hives that is related to her active service, specifically as a manifestation of Gulf War syndrome, or, alternatively, to her service-connected conditions. See December 2011 VA Form 21-526 and October 2022 Representative's Brief. The Board finds that the weight of the evidence is against finding that the diagnosed skin conditions are related to the Veteran's active-duty service, to include environmental toxin exposure in the Persian Gulf. The Board further finds that the Veteran's skin conditions are not secondary to service-connected disabilities. Analysis The first question for the Board is whether the Veteran has a present disability. Here, the record shows diagnoses of shingles and hives. See e.g., compensation examination reports. Regarding the second element of in-service incurrence, the Veteran's service treatment records contain reference to a rash. In addition, the Veteran is presumed as exposed to environmental toxins as a Persian Gulf War Veteran. In addition, regarding the second element of secondary service connection, the Veteran's service-connected disabilities are chronic fatigue syndrome, panic disorder, headaches, fibromyalgia, and chronic plantar fasciitis. Finally, regarding the third element of service connection for direct and secondary service connection, the Board assigns a higher probative value to the July 2019 and November 2022 opinions than the lay statements and medical article submitted by the Veteran. The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Here, the November 2022 opinion was provided by a VA medical professional who possess the necessary education, training, and expertise to provide the requested opinions. Additionally, the opinion was also shown to have been based on a review of the Veteran's record and were accompanied by a sufficient explanation as to why the Veteran's skin conditions were not related to service. Furthermore, there is no competing medical opinion of record. The Board gives high probative weight to the November 2022 VA examiner's opinions. The examiner considered the medical article referenced by the Veteran. The examiner also considered pertinent medical history and the Veteran's lay reports regarding the onset and duration her his symptoms. The Board has considered the Veteran's lay statements of record regarding the impact of her stress-related psychiatric disorder on her recurring shingles, as well as the effect of any aggravation of her service-connected disabilities on her immune system. However, this involved a complex medical issue which the Veteran is not competent to address. See Davidson v. Nicholson, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board reiterates that the evidence persuasively weighs against findings that an in-service injury, event, or disease occurred that led to the Veteran's skin conditions. Further, although she is competent to report symptomatology with regards to skin conditions, as previously discussed, she is not competent to opine that her skin conditions were directly due to service or secondary to a service-connected disability. As such, her statements to that effect are afforded little probative value. Therefore, based on the foregoing, the Board finds that the VA expert opinions to be the most probative evidence. The Veteran's representative has argued for inadequacy of the VA examiners' opinions due to an alleged failure to address a suppressed immune system due to medications for service-connected conditions, which caused or aggravated the Veteran's skin conditions. The Board disagrees. The November 2022 examiner found that the Veteran's skin conditions were not related to service, nor to the Veteran's service-connected conditions. There is no competent evidence of record suggesting a decreased immune system as a result of the Veteran's service-connected conditions causing the Veteran's skin conditions, and the examiner is deemed to have considered all relevant medical inquiries as to whether the skin conditions could be related to decreased immune system as a result of the Veteran's service-connected disabilities. A medical examiner is not required to explicitly lay out the examiner's journey from the facts to a conclusion. Monzingo v. Shinseki, 26 Vet.App. 97, 106 (2012). The Board notes that on August 10, 2022, "the PACT Act", which established a presumption for certain diseases and illnesses as due to in-service exposure to burn pits and other Persian Gulf environmental hazards, was signed into law. The PACT Act, Pub. L. 117-168 (August 10, 2022). The enactment of the PACT Act has added presumptive service connection for many conditions related to military environmental exposure in service. Pub. L. 117-168 (2022). However, there is no probative evidence that the Veteran has a disability related to his presumed exposures in service. In addition, as stated above, the July 2019 examiner did not consider the Veteran's skin signs and symptoms a MUCMI. See 38 C.F.R. § 3.317(a)(2)(ii). Presumptive service connection as an undiagnosed illness is also not warranted as the Veteran has diagnosed skin conditions. The Board has considered the Veteran's contention that she has a skin condition related to her service in the Persian Gulf war. The Veteran, however, is not competent to offer an opinion as to the etiology of this condition as she does not have the requisite medical expertise. Indeed, a Veteran's ability to render an opinion of etiology is limited to observable, immediate cause-and-effect relationships, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran's lay assertions are therefore afforded less probative weight, and less credibility than the July 2019 VA medical opinions. Accordingly, the evidence is persuasively against the claim for service connection for a skin condition. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for a skin condition is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. RAY BARTO SLABBEKORN, JR. Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Koottappillil The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.