Citation Nr: 1128317 Decision Date: 07/29/11 Archive Date: 08/04/11 DOCKET NO. 09-15 766 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for pseudofolliculitis barbae WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1974 to August 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision by the Jackson Mississippi, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDING OF FACT The evidence has not demonstrated a chronic disability for which VA compensation benefits may be awarded. CONCLUSION OF LAW The criteria for service connection for pseudofolliculitis barbae have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 3.102, 3.159, 3.303 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and 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. Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Prior to the issuance of the September 2007 rating decision that is the subject of the appeal, the Veteran was advised of the evidence necessary to establish entitlement to service connection and of his and VA's respective duties in obtaining evidence. See July 2007 letter. This letter also informed him of the appropriate disability rating and effective date of any grant of service connection, as required by Dingess. Accordingly, the duty to notify has been fulfilled concerning this claim. VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). This duty has also been met, as the Veteran's service, and VA treatment records have been obtained and he was afforded a VA examination in connection with his claim. See 38 C.F.R. § 3.159(c)(4) (2010). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination is adequate because, as shown below, it was based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and thus allows the Board to make a fully informed determination. The Board is cognizant of the fact that the VA examiner was unable to review the Veteran's claims file prior to the examination. In this regard, however, the VA examination report shows clearly that the examiner was made aware of the exact facts of the case. The Veteran specifically detailed that he was given a shaving profile in service due to psuedofolliculitis, that he first shaved in 2009 and that he was once prescribed a cream to treat his face prior to that time. The evidence fully supports the Veteran's description of the facts and the examiner does not suggest in any way that he failed to take the Veteran's account of his symptoms as fact. Thus, the VA examiner was as fully informed as to the facts of the case as he would have been had he been provided with the claims file. The Board thus finds that the examiner's failure to review the claims file is in no way prejudicial to the Veteran. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). In this case, the Veteran was afforded a Board hearing in March 2010. During this hearing, the Acting Veterans Law Judge set forth the issue to be discussed at the hearing and sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. See hearing transcript. Neither the Veteran nor his representative has identified any prejudice in the conduct of the hearing. For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or assistance is necessary, and deciding the appeal at this time is not prejudicial to the Veteran. Laws and Regulations Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a medical diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in- service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999). As an alternative to establishing the second and third prongs in Hickson, service connection also may be established if the evidence of record reveals that the Veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. Barr, 21 Vet. App. at 303; Savage v. Gober, 10 Vet. App. 488 (1997). Continuity of symptomatology may be established if a Veteran can demonstrate (1) the condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical, or in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 488. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Factual Background and Analysis The Veteran asserts that he has pseudofolliculitis barbae as a result of his service. Service treatment records include the Veteran's September 1974 reports of medical examination and medical history upon enlistment which note normal skin. Service treatment records also include September and November 1974 diagnoses of folliculitis and a January 1975 physical profile which authorized the Veteran to keep a neatly trimmed beard due to his pseudofolliculitis barbae. The Veteran's July 1977 reports of medical examination and medical history note normal skin upon separation from service. The evidence of record first demonstrates complaints of a skin disorder in a March 2009 VA medical center treatment record. This record, a nursing note, remarks that the Veteran wished help to get compensation for dermatitis on his face. It was noted that no visible rash was seen. Later notes recorded on the same day note that the Veteran requested an appointment with dermatology stating that he had shaved a week prior and presented with razor bumps which he stated were irritated. The Veteran stated that he had worn a beard for thirty years and sought assistance with skin management because he wished to shave. A diagnosis of pseudofolliculitis was provided, hydrocortisone cream was prescribed. It was noted that sometimes growing a beard was the only available remedy for the Veteran's disorder. In August 2009, the Veteran was afforded a VA examination. During his examination, the Veteran explained that he was given a shaving profile in service and that after discharge he was evaluated by a private physician who gave him a prescription for his disorder. He denied any additional treatment for his face except for growing a beard. The Veteran stated that in 2009 he allowed himself to shave to illustrate to his primary care provider his skin symptoms. The Veteran reported that he did not shave but trimmed his beard with clippers. He stated that he did not have any flare up of symptoms as long as he maintained his beard. The Veteran denied functional impairment from his skin condition. On physical examination, the Veteran had a full beard and the skin over the face and neck was found to be smooth and without scarring or disfigurement from active lesions. There was no inflammation or hyper or hypo pigmentation found. There was no skin condition visible on examination. The Veteran's skin was found to be normal in texture with the other skin. A normal skin examination was noted. The Veteran testified before the undersigned Acting Veterans Law Judge in a March 2010 Travel Board Hearing. During his hearing, the Veteran testified that he had never shaved prior to service and that, when he shaved in service he developed pseudofolliculitis for which he was assigned a shaving profile. He explained that, because he developed symptoms upon shaving he was forced to wear a beard which had affected his confidence and appearance detrimentally. The Veteran additionally submitted an article from the internet regarding pseudofolliculitis which noted that it was a chronic disorder characterized by ingrown hairs, papules and dark marks. Having reviewed the record in its totality, the Board finds that the preponderance of the evidence of record is against the Veteran's claim for service connection. As noted above, in order to establish service connection, there must be a demonstration of a present chronic disorder, an in-service disorder and a link between the two. While the evidence of record shows evidence of pseudofolliculitis barbae in service and evidence of the same disorder some thirty years later, the claimed disorder is not found to be chronic and there is no competent medical evidence relating the Veteran's pseudofolliculitis barbae to his service. The evidence of record shows three incidents of pseudofolliculitis barbae. Two occurring during service and one is demonstrated in 2009. The Veteran noted during his VA examination that he had had a beard for thirty years and thus that he had not had skin symptoms until 2009 when he shaved to show a skin disorder to his treating physician. In order to establish service connection, there must be a showing of a chronic disorder or, where chronicity is not shown, continuity of symptoms. 38 C.F.R. § 3.303(b). In this regard it is noted that where a chronic disease is shown, subsequent manifestations of the same chronic disease at a later date, however remote are service connected. Id. It is further noted that 38 C.F.R. § 3.303 additionally states that for the showing of a chronic disease there must be sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word "chronic." Id. Where the chronicity of a disease may be legitimately questioned or chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. Here, the evidence demonstrates isolated incidents of pseudofolliculitis barbae. The evidence further shows that the Veteran was provided with a physical profile thereafter. The physical profile suggests the Veteran's in-service physician's belief that his symptoms would continue however regular in-service symptoms simply are not demonstrated by the record. Further, the record shows that the Veteran has kept a beard for thirty years and that he, in fact, does not have a disability at all when he keeps a beard. In this respect, the Veteran's incidents of pseudofolliculitis barbae are shown to be acute and transitory. See 38 C.F.R. § 3.380 (noting that acute allergic manifestations subsiding on the absence of or removal of the allergen are generally to be regarded as acute diseases, healing without residuals). Much like an allergy whose symptoms are non-existent with the removal of the allergen, the Veteran's disorder is wholly absent when he does not shave. Such a disorder is not of the sort for which the Veteran may be service connected. The Board notes the Veteran's assertion that his present pseudofolliculitis barbae is related to service. In this respect, as a lay person, the Veteran is competent to report on that which he has personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Moreover, in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) it was held that a lay person can speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Here, however, as continuous symptoms have not been shown and have not been observed by the Veteran, the question of etiology goes beyond a simple and immediately observable cause-and-effect relationship. As such, the Veteran is not competent to render an opinion of etiology in this particular case. Further, the Veteran provided in support of his claim an article from the internet which defines pseudofolliculitis barbae and describes the condition as "chronic." With respect to the article submitted by the Veteran, medical articles or treatises can provide important support when combined with an opinion of a medical professional if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222 (1999); Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998). Here, the medical article submitted by the Veteran were not accompanied by the opinion of any medical expert linking his psuedofolliculitis barbae with his service. Thus, the medical article submitted by the Veteran is insufficient to establish that the Veteran's condition specifically was chronic when such chronicity is put into question, as it has been in this case. As the chronicity of the Veteran's disorder may be legitimately questioned under the circumstances of this case and as continuity of symptoms has not been shown, the Veteran's disorder is not found to be one where service connection may be granted. The Veteran's claim for entitlement to service connection for pseudofolliculitis barbae is therefore denied. ORDER Entitlement to service connection for pseudo folliculitis barbae is denied. ____________________________________________ TARA L. REYNOLDS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs