Citation Nr: 1122147	
Decision Date: 06/08/11    Archive Date: 06/20/11

DOCKET NO.  09-22 848	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Reno, Nevada


THE ISSUES

1.  Entitlement to service connection for pseudofolliculitis barbae.

2.  Entitlement to service connection for bilateral eye disability.


REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, Inc.


WITNESS AT HEARING ON APPEAL

Appellant






ATTORNEY FOR THE BOARD

J. H. Nilon, Counsel


INTRODUCTION

The Veteran served on active duty from March 1984 to July 2007.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada that inter alia denied service connection pseudofolliculitis barbae, pre-glaucoma and bilateral macular degeneration.

The Board notes that the originating agency has developed the eye issue on appeal as a claim for specific eye disorders.  In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the U.S. Court of Appeals for Veterans Claims found that an appellant's claim for service connection for posttraumatic stress disorder (PTSD) should have been construed more broadly by VA as a claim for service connection for any mental disability.  The Court noted that the claimant was not competent to diagnose a particular psychiatric disability, such as PTSD, but that he was competent to describe his mental symptoms.  Id. at 4-5, citing Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) and Layno v. Brown, 6 Vet. App. 465, 469 (1994).  The Court also noted that the evidence submitted in support of the claim showed that the appellant had been diagnosed with psychiatric disabilities other than PTSD and that these disabilities arose "from the same symptoms for which he was seeking benefits."  Id. at 9.  The Court held that, in construing a claim, the Board must consider any disability "that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim."  Id. at 5.  Accordingly, the Board has framed the eye issue on appeal as entitlement to service connection for bilateral eye disability.

The issue of entitlement to service connection for bilateral eye disability is addressed in the Remand that follows the Order section of the Decision below.

 
FINDING OF FACT

Pseudofolliculitis barbae originated during the Veteran's active service.


CONCLUSION OF LAW

Pseudofolliculitis barbae was incurred in active service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010).


REASONS AND BASES FOR FINDING AND CONCLUSION

As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claim.  In addition, the evidence currently of record is sufficient to substantiate his claim.  Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010) or 38 C.F.R. § 3.159 (2010).

Legal Principles

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Analysis

Service treatment records (STRs) show the Veteran was granted a temporary 7-day shaving profile for pseudofolliculitis barbae (PFB) in October 1987; there is no indication in STRs the shaving profile was subsequently renewed or made permanent.  There is no subsequent record in STRs of complaint or treatment of, or profile for, PFB during service through his separation from service in July 2007.  The only skin complaints recorded were occasional complaints of insect bites.  Numerous periodic examinations before and after October 1987 showed the skin as "normal."  The Veteran's ongoing medical "problems" list in service does not include PFB or any other skin disorder.     

The Veteran had a VA medical examination in November 2007, performed by a physician.  The examiner noted previous diagnosis of PFB, which had gone away since the Veteran began using electric clippers.  There was no complaint of current skin symptoms and physical examination showed no current skin symptoms.  The diagnosis was history of PFB, cured since the Veteran stopped shaving with a blade and began using electric clippers.

The Veteran's representative submitted a Notice of Disagreement (NOD) in June 2008 asserting that, contrary to the opinion of the VA examiner, PFB is never "cured" but merely controlled using alternative treatments and shaving techniques.  The representative made essentially the same assertion in a letter dated in May 2010, making the analogy that stating PFB is "cured" through alternative shaving techniques is analogous to stating diabetes is "cured" through use of insulin.

The Veteran testified before the Board in May 2010 that PFB developed during service and had been chronic ever since.

On review of the evidence above, the Board notes the Veteran was clearly identified as having PFB during service in 1987.  He has credibly testified that the condition has continued since service.  Moreover, the Board agrees with the argument submitted by his representative that the condition is currently under control or asymptomatic because the Veteran has stopped shaving with a blade.  In the Board's opinion, the evidence does not affirmatively establish that the condition would not become symptomatic if the Veteran resumed shaving with a blade.  Accordingly, service connection is in order for this disability.


ORDER

Service connection for pseudofolliculitis barbae is denied.


REMAND

The Board finds that further development is required before the claim for service connection for bilateral eye disability is adjudicated.

The Veteran has asserted a claim for a bilateral eye disorder to include as due to the service-connected diabetes mellitus.  The Board notes at this point that during the pendency of this claim 38 C.F.R. § 3.310 was amended, effective October 10, 2006, but the amendments to this section are not liberalizing.  Therefore, the originating agency should apply the former version of the regulation.

The Veteran's separation physical examination in May 2007 showed as follows:  (1) normal routine ophthalmological examination; (2) refractive error - myopia; (3) astigmatism; (4) presbyopia; and, (5) preglaucoma.  

The Veteran had a VA eye examination in November 2007.  The examiner, an optician, provided a clinical impression of refractive, myopia and presbyopia; bilateral aging macular degeneration; bilateral cataract; bilateral pinguecula; impaired fasting glucose without diabetic retinopathy; and no evidence of bilateral glaucoma on examination.

The Board initially notes that an optometrist is not a physician trained in the diagnosis and treatment of diseases of the eye.  Further, the examiner did not provide any opinion as to whether the Veteran's current eye disorders were related to active service, from which the Veteran had been discharged six months prior to examination.

The Board accordingly finds the VA examination of November 2007 is inadequate for adjudication of the appeal, and that the Veteran should be provided examination by an ophthalmologist at this point. 

Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions:

1.  The Veteran should be afforded an examination by an ophthalmologist.

The claims folders must be made available to and reviewed by the examiner, and any indicated studies should be performed.  

Based on review of the files and examination of the Veteran, the examiner should state a medical opinion with respect to each currently present eye disorder (other than mere refractive error) as to whether there is a 50 percent or better probability that the disorder originated during active service or is otherwise etiologically related to active service.

The rationale for each opinion expressed must also be provided.

2.  The RO or the AMC should also undertake any other development it determines to be warranted.

3.  Then, the RO or the AMC should readjudicate the issue of entitlement to service connection for a bilateral eye disability.  If the benefit sought on appeal is not granted to the Veteran's satisfaction, the RO or the AMC should furnish to the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond.  Thereafter, if indicated, the case should be returned to the Board for further appellate action.  

By this remand, the Board intimates no opinion as to any final outcome warranted. 

The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).


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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 Supp. 2010).



______________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs