Citation Nr: 0300797 Decision Date: 01/14/03 Archive Date: 01/28/03 DOCKET NO. 02-03 243 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES Entitlement to service connection for pseudofolliculitis barbae. (The issues of entitlement to service connection for a pulmonary condition and entitlement to service connection for bilateral hearing loss will be the subjects of a later decision.) REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Frank L. Christian, Counsel INTRODUCTION The veteran served on active duty in the United States Navy from March 1974 to March 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of April 2001 from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which denied service connection for a lung condition, for bilateral hearing loss, and for pseudofolliculitis barbae. The Board is undertaking additional development on the issues of entitlement to service connection for a chronic pulmonary condition and service connection for hearing loss, pursuant to authority granted by 67 Fed. Reg. 3,099, 3,104 (Jan. 23, 2002) (to be codified at 38 C.F.R. § 19.9(a)(2). When it is completed, the Board will provide notice of the development as required by Rule of Practice 903. After giving notice and reviewing the claimant's response to the notice, the Board will prepare a separate decision addressing those issues. There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2097-98 (2000) [codified as amended at 38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107 (West Supp. 2002)]. This law eliminates the concept of a well-grounded claim, redefines the obligations of VA with respect to the duty to assist, and supersedes the decision of the United States Court of Appeals for Veterans Claims (the Court) in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order) (holding that VA cannot assist in the development of a claim that is not well grounded). The VCAA is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment and not yet final as of that date. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). The record shows that the claimant and his representative were notified of the provisions of the VCAA by RO letter of February 8, 2001, and by the Statement of the Case, issued on March 8, 2002, which informed them of VA's duty to notify them of the information and evidence necessary to substantiate the claims and to assist them in obtaining all such evidence. That Statement of the Case also informed the claimant and his representative which part of that evidence would be obtained by the RO and which part of that evidence would be obtained by the claimant, pursuant to Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (requiring VA to notify the claimant of what evidence he or she was required to provide and what evidence the VA would attempt to obtain). That Statement of the Case further notified the claimant and his representative of the issues on appeal, the evidence considered, the adjudicative actions taken, the pertinent law and regulations governing service connection, the decisions reached, and the reasons and bases for those decisions. In addition, that Statement of the Case informed the claimant and the veteran of VA's duty to assist them by obtaining all evidence in the custody of military authorities or maintained by any other federal, State or local government agency, as well as any medical, employment, or other non-government records which are pertinent or specific to that claim; and as to which the claimant or the veteran identified and provided record release authorizations permitting VA to obtain those records. Further, that Statement of the Case informed the claimant and his representative that should efforts to obtain records identified by the claimant prove unsuccessful for any reason which the claimant could remedy, the VA would notify the claimant and advise them that the ultimate responsibility for furnishing such evidence lay with the individual seeking to claimant enter that evidence into the record. The Board finds that all relevant evidence necessary for an equitable disposition of the instant appeal has been obtained by the RO, and that VA's duty of notification to the claimant and his representative of required information and evidence and of its duty to assist them in obtaining all evidence necessary to substantiate the issues on appeal have been fully met. Neither the appellant nor his representative have argued a notice or duty to assist violation under the VCAA, and the Board finds that there is no question that the appellant and his representative were fully notified and aware of the type of evidence required to substantiate the claims. In view of the extensive factual development in the case, as demonstrated by the record on appeal, the Board finds that there is no reasonable possibility that further assistance would aid in substantiating this appeal. For those reasons, further development is not necessary for compliance with the provisions of 38 U.S.C.A. §§ 5103 and 5103A (West Supp. 2002). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the instant appeal for service connection for pseudofolliculitis barbae has been obtained by the RO, and VA's duty of notification to the claimant of required information and evidence and of its duty to assist him in obtaining all evidence necessary to substantiate that claim have been fully met. 2. Pseudofolliculitis barbae was not manifest during active service, on routine inservice medical examinations, on service separation examination, or at any time following final service separation, and has not been demonstrated or diagnosed. CONCLUSION OF LAW Pseudofolliculitis barbae was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107(a) (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.102, 3.303(a) (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Evidence The record shows that the claimant served on active duty in the United States Navy from March 1974 to March 1978. The claimant's original application for VA disability compensation benefits (VA Form 21-526), received at the RO on August 15, 2000, sought service connection for a lung condition, for bilateral hearing loss, and for pseudofolliculitis barbae. In that application, the claimant reported no postservice treatment for those conditions, but indicated that those conditions were found during physical examinations at Kaiser Permanente conducted since 1986. The claimant's service medical records show that on his service entrance examination, conducted in March 1974, his face, neck and skin were normal. His service medical records are silent for complaint, treatment, findings or diagnosis of pseudofolliculitis barbae during the claimant's period of active service. The record further shows that at the time of service medical examinations conducted in March 1975 and in June 1975, the claimant denied any history of skin diseases, and the reports of service medical examinations conducted in March 1975, in June 1975, and in July 1976, are silent for complaint, treatment, findings or diagnosis of pseudofolliculitis barbae, and show no abnormalities of the face, neck, or skin. At the time of his service separation examination in March 1978, the claimant denied any history of skin diseases, and his report of service separation examination, conducted in March 1978, disclosed no abnormalities of the face, neck, or skin. In his Notice of Disagreement, the claimant asserted that while in boot camp, he had to shave daily; that between March and June 1974, his face became infected with razor bumps; and that he was treated and given a no-shaving chit to correct that condition. II. Analysis In order to establish service connection for claimed disability, the facts, as shown by evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 2002); 38 C.F.R. § 3.303(a) (2002). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including psychosis, when manifested to a compensable degree within the initial post service year. 38 C.F.R. §§ 3.307, 3.309(b) (2002). Pseudofolliculitis barbae is not among those diseases which may be presumptively service connected. A veteran who served during a period of war or during peacetime service after December 31, 1946, is presumed in sound condition except for defects noted when examined and accepted for service. 38 U.S.C.A. § 1111, 1137 (West 1991). Clear and unmistakable evidence that the disability existed prior to service will rebut this presumption. 38 U.S.C.A. § 1111 (West 1991); 38 C.F.R. § 3.304(b) (1998); Akins v. Derwinski, 1 Vet. App. 228, 232 (1991); Bagby v. Derwinski, 1 Vet. App. 225 (1991). No findings of pseudofolliculitis barbae or other skin disease or defect were shown on the claimant's service entrance examination, and he is presumed to have been in sound condition when examined and accepted for service. As noted, the claimant's service medical records are silent for complaint, treatment, findings or diagnosis of pseudofolliculitis barbae during the claimant's period of active service. The record further shows that at the time of service medical examinations conducted in March 1975 and in June 1975, the claimant denied any history of skin diseases, and the reports of service medical examinations conducted in March 1975, in June 1975, and in July 1976, are silent for complaint, treatment, findings or diagnosis of pseudofolliculitis barbae, and show no abnormalities of the face, neck, or skin. At the time of his service separation examination in March 1978, the claimant denied any history of skin diseases, and his report of service separation examination, conducted in March 1978, disclosed no abnormalities of the face, neck, or skin. In his Notice of Disagreement, the claimant asserted that while in boot camp, he had to shave daily; that between March and June 1974, his face became infected with razor bumps; and that he was treated and given a no-shaving chit to correct that condition. The Board notes, however, that the claimant's service medical records during the specified period are of record, including March, April, May, June and July 1974, inclusive, and disclose no complaint, treatment, findings or diagnosis of pseudofolliculitis barbae or other skin disease during that period, and are further devoid of evidence that the claimant was issued a no-shaving profile. Furthermore, in his original application for VA disability compensation benefits, the claimant reported no postservice treatment for pseudofolliculitis barbae, and the reports of private medical treatment and examination from June 1999 to June 2002 are silent for complaint, treatment, findings or diagnosis of pseudofolliculitis barbae. The claimant has requested a VA examination with respect to his claim for service connection for pseudofolliculitis barbae. The Board notes, however, that current findings of pseudofolliculitis barbae would not serve to link that condition to the claimant's period of active service. In addition, in the absence of clinical findings of pseudofolliculitis barbae during the claimant's period of active service or on service separation examination, a medical opinion as to whether any current pseudofolliculitis barbae was related to active service would be without any factual predicate. Based upon the foregoing, and for the reasons and bases stated, the Board finds that service connection for pseudofolliculitis barbae is not warranted. Accordingly, the claim for service connection for pseudofolliculitis barbae must be denied. In reaching its decision, the Board has considered the doctrine of reasonable doubt, however, as the evidence is not in equipoise, or evenly balanced, but is against claim for service connection for pseudofolliculitis barbae, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for pseudofolliculitis barbae is denied. G. H. Shufelt Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.