Citation Nr: 1234909 Decision Date: 10/09/12 Archive Date: 10/17/12 DOCKET NO. 03-18 873 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a disability manifested by chest pain. 2. Entitlement to a rating in excess of 30 percent for pseudofolliculitis barbae. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. A. Wasik, Counsel INTRODUCTION The Veteran had active duty service from January 1979 to June 1992. This appeal to the Board of Veterans' Appeals (Board) arose from a February 2003 rating decision in which the RO, inter alia, increased the rating for pseudofolliculitis barbae from 0 to 10 percent, effective December 12, 2001, and denied service connection for a disorder manifested by chest pain. In February 2003, the Veteran filed a notice of disagreement (NOD) with respect to both matters. In May 2003, the RO increased the rating for pseudofolliculitis barbae from 10 to 30 percent, also effective December 12, 2001. A statement of the case (SOC) for the chest pain claim was issued in May 2003 and a SOC for the pseudofolliculitis barbae claim was issued in March 2004, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in July 2003 for his chest pain claim and in May 2004 for his pseudofolliculitis barbae claim. Although the RO has granted higher ratings for pseudofolliculitis barbae during the pendency of this appeal, inasmuch as higher ratings for this disability are available, and the Veteran is presumed to seek the maximum available benefit for a disability, the claim for higher rating remains viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In September 2010, the Board remanded the claim on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After completing the requested development, the AMC continued to deny the claim (as reflected in an October 2011supplemental SOC (SSOC)) and returned this matter to the Board for further consideration. The Board's decision on the claim for service connection for disability manifested by chest pain is set forth below. The claim for a rating in excess of 30 percent for pseudofolliculitis barbae is addressed in the remand following the order; this matter is being remanded to the RO, via the AMC. VA will notify the Veteran, when further action, on his part, is required, FINDINGS OF FACT 1. All notification and actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. The Veteran had chest pains during service, there is credible evidence of continuing chest pain post service, and persuasive medical opinion evidence indicates that that the Veteran's current costochondritis is as likely as not medically- related to his in-service complaints. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for costochondritis are met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). Given the favorable disposition of the claim for service connection for a disability manifested by chest pains, the Board finds that all notification and development actions needed to fairly adjudicate this claim have been accomplished. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge from 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). In adjudicating a claim for VA benefits, VA is responsible for determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Considering the claim in light of the above, and affording the Veteran the benefit of the doubt, the Board finds that service connection is warranted. As explained below, there is competent evidence of the presence of complaints of chest pain during active duty, credible evidence of continuing chest pain post service, and competent medical evidence linking a current disability-costochondritis-to the complaints of chest pain during active duty. A service treatment record dated in January 1988 demonstrates the Veteran complained of left anterior chest pain which had been present for three weeks. The pain did not radiate. The assessment was chest wall pain. In October 1988, the Veteran sought treatment for left side pain which had been present for one week. There was no history of trauma. The assessment was myalgia. An April 1989 service treatment record reveals that the Veteran complained of a sharp pain in the chest then neck. In May 1992, the Veteran informed a clinician that he had had intermittent chest pain for four years. The pain was in the left side of the chest. The assessments were job related problem, stress and doubtful organic problem. Post service, in August 1996, the Veteran complained of atypical chest pain. The pain lasted five minutes and was relieved by rest. The Veteran reported a history of chest pain for the last six years. In December 2001, the Veteran filed a claim for service connection for, among other things, a disorder manifested by chest pain. The Veteran reported that his chest pain began in 1985 and was constant. In February 2004, the Veteran informed a VA clinician that he had had left sided chest pain for ten years. The pertinent assessment was chest pain which was musculoskeletal in nature, likely costochondritis. In December 2004, the Veteran informed a clinician that he had had stabbing chest pain which had been present for the last 25 years. The pain was constant. During the August 2007 Board hearing, the Veteran testified that his chest pain was constant. He rated it as 4 out of 10 but it could get very severe. He had to go to the emergency room on three occasions due to chest pain. In October 2009, the Veteran sought treatment in an emergency room with complaints of chest pain. Physical examination was conducted. The impression was costochondritis. In order to determine whether the Veteran's complaints of chest pain were etiologically linked to active duty, VA arranged for the several VA examinations to be conducted. A VA heart examination was conducted in October 2010. The Veteran reported a 29 year history of left sided chest pain. Physical examination was performed. The diagnosis was no ischemic heart disease found and a normal cardiac examination. In an addendum to the examination report which was produced in August 2011, the examiner determined that there was no evidence of ischemic heart disease or heart disease of any kind. The examiner observed the Veteran had well defined chest wall pain which was aggravated by touching or lying on the left side. The examiner was unable to find any reference to chest wall pain in the claims file. There were no notes related to a cardiac condition. The examiner found that the Veteran's chest wall pain was not noted in the service treatment records and was not cardiac in origin and was not due to military service. The Board finds that, on the question of the etiology of the Veteran's chest pain, no probative value should be placed on the October 2010 opinion, because a medical opinion based on an inaccurate factual premise is not probative. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In his report, the October 2010 examiner wrote that he could find no evidence of chest wall pain in the claims file. This determination is wrong. As noted above, there are several references in the service treatment records to complaints of chest pain. Furthermore, to the extent that the examiner discounted the Veteran's self-reported medical history of chest pain, the Board finds this to be in error. The Veteran is competent to report on symptomatology he experiences including reporting on the presence and history of chest pain during active duty and thereafter. VA subsequently arranged to obtain a specialist's medical opinion regarding the etiology of the Veteran's left sided chest wall complaints. In a March 2012 report, a VA rheumatologist wrote that he had reviewed the Veteran's claims file. Based on the Veteran's chest wall tenderness and lack of evidence of other sources of the Veteran's pain, the physician felt that costochondritis was the most likely cause of the Veteran's ongoing problems with his chest pain. The physician wrote that, based on the examination of January 1988 which revealed chest wall tenderness along the left costosternal border that reproduced the pain, it was believed that it was as likely as not that the Veteran's complaints of chest wall pain while in the service in both 1988 and 1992 were the initial manifestations of the Veteran's ongoing problems with chest pain. It was observed by the physician that costochondritis is a well recognized but poorly characterized cause of chest pain that, in the physician's experience, can be recurrent and is the best explanation for the Veteran's ongoing complaints. The Board points out that the physician who provided the March 2012 opinion had access to and reviewed all the evidence in the claims file, to include the service treatment records as well as the post-service medical evidence and the Veteran's self-reported history. The examiner noted the presence of complaints of chest wall pain during active duty and linked the currently existing costochondritis to active duty via these complaints as well as the Veteran's post-service self-reported history. Hence, the Board finds the March 2012 specialist's opinion should be accorded significant probative weight. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382(1998); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994) (the probative value of a physician's opinion depends in part on the reasoning employed by the physician and whether or not (or the extent to which) he reviewed prior clinical records and other evidence). The Board notes there appears to be some minor discrepancies regarding the time of onset of the Veteran's chest pain; however, the Board finds the majority of the Veteran's statements place the onset of his complaints during active duty service or very close thereto. The Board finds no reason to question the Veteran's veracity with regard to his reports of chest pain symptomatology. Moreover, lay statements from people who knew the Veteran attest to his continuing post-service complaints of chest pain. This evidence-which the lay affiants are competent to provide-supports the Veteran's allegations of continuity of symptomatology of chest pain from discharge to the present. See, e.g., Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (providing that a layperson can attest to factual matters about which he or she observes or has first-hand knowledge). Again, the Board finds no reason to question the veracity of these assertions. As noted, the Board is according significant probative weight to the March 2012 specialist's medical opinion-which clearly was based, at least in part, on the credible lay assertions of record. While the examiner was not definitive, he did express his opinion in terms sufficient to permit application of the benefit-of-the-doubt doctrine. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. Given the totality of the evidence, to particularly include the March 2012 medical report, and resolving all reasonable doubt on the question of medical nexus in the Veteran's favor, the Board finds that the criteria for service connection for costochondritis are met. ORDER Service connection for costochondritis is granted. REMAND The Board's review of the claims file reveals that further RO action on the claim for an increased rating for pseudofolliculitis barbae is warranted. The most recent VA examination for compensation and pension purposes for the disability was conducted in October 2010. At that time, the examiner specifically wrote that photo consent had been obtained and digital images of the Veteran were made for association with the claims file. The Board's review demonstrates that the reported pictures have not been associated with the claims file. The Board finds this evidence is pertinent to the Veteran's claim as one of the potential criteria for evaluating the claim is whether the pseudofolliculitis barbae is productive of disfigurement. Additionally, Note 3 to Diagnostic Code 7800 provides that the evaluator is to take into consideration unretouched color photographs when evaluating scars or other disfigurement under this Diagnostic Code. If possible, this evidence must be obtained as associated with the claims file. The Board further notes that the report of the October 2010 VA examination reflects conflicting comments regarding the extent of symptomatology associated with the service-connected pseudofolliculitis barbae. In one portion of the examination report, the examiner wrote that the symptomatology associated with the pseudofolliculitis barbae affected 5 to 20 percent of the exposed area of the face and less than 5 percent of the total body area. However, in an addendum to the examination report, the examiner indicated that the area affected was greater than 50 percent of the face and neck. The Board notes that one criterion for evaluation of the Veteran's disability is the size of the area of the affected skin. A clarification is required to address this discrepancy. Also, in one section, the October 2010 examination report indicates that current treatment the Veteran was receiving for the skin disorder did not involve corticosteroid treatment. However, in the same section, it is reported that the Veteran was using a topical corticosteroid as a daily aftershave. It is not apparent to the Board if treatment for the service-connected skin disability requires the use of systemic therapy such as corticosteroids or other immunosuppressive drugs and, if so, how long the treatment has been ongoing. This information is also pertinent to evaluation of the Veteran's skin claim and must be obtained to the extent possible. 38 C.F.R. § 4.118 Diagnostic Code 7813. As the medical evidence currently of record is inadequate to properly assess the severity of the Veteran's pseudofolliculitis barbae, the Board finds that further medical development in this regard is warranted. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2011); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The RO should contact the physician who examined the Veteran in October 2010 for n addendum opinion which addresses the Board's above-noted concerns. The Veteran should only be scheduled to undergo another examination if the October 2010 examiner is unavailable, or is unable to provide the requested opinion without first examining the Veteran. The Veteran is hereby notified that failure to report to any scheduled examination, without good cause, shall result in denial of the claim for increased rating. See 38 C.F.R. § 3.655(b) (2011). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to any scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. Prior to obtaining further medical opinion in this case, to ensure that all due process requirements are met, and that the record before the physician is complete, the RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim remaining on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2011) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2011). The actions identified herein are consistent with the duties imposed by the Veterans Claim Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2011). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the remaining claim on appeal. The RO's adjudication of the claim should include consideration of whether " staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007), is appropriate. Accordingly, this matter is hereby REMANDED to the RO, via the AMC, for the following action: 1. The RO should obtain and associate with the claims file the picture or pictures of the Veteran which were taken at the time of the October 2010 VA dermatology examination. 2. The RO should send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim for increased rating that is not currently of record. The RO should clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, the RO should forward the Veteran's entire claims file, to include a complete copy of this REMAND, to the physician who conducted the October 2010 VA dermatology examination for an addendum report which addresses the following: a.) What is the total area of skin affected by the pseudofolliculitis barbae and what is total area of the exposed skin affected by the pseudofolliculitis barbae? b.) Does the service-connected pseudofolliculitis require the use of systemic therapy such as corticosteroids or other immunosuppressive drugs and, if so, how long the treatment has been ongoing? If the physician who conducted the October 2010 VA examination is not available, or is unable to provide the requested opinion without first examining the Veteran, the RO should arrange for the Veteran to undergo a VA dermatology examination, by an appropriate physician, at a VA medical facility. The entire claims file, to include a complete copy of the REMAND, must be made available to the physician designated to examine the Veteran, and the report of examination should include discussion of the Veteran's documented medical history and assertions. All clinical findings should be reported in detail. The examiner should render findings responsive to the applicable criteria for rating the service-connected skin disability, specifically identifying the areas of the body affected by pseudofolliculitis barbae, as well as the percentage of the entire body, and the percentage of the exposed areas affected. The examiner should also clearly indicate whether the disability requires the use of systemic therapy such as corticosteroids or other immunosuppressive drugs, and, if so, the frequency of such use during the prior 12-month period The physician should set forth all examination findings (if any), along with complete rationale for the conclusions reached, in a printed (typewritten) report. 5. If the Veteran fails to report to any scheduled examination, the RO must obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 6. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claim remaining on appeal. If the Veteran fails, without good cause, to report If the Veteran fails, without good cause, to report to any scheduled examination, in adjudicating the claim for increased rating, the RO should apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. Otherwise, the RO should adjudicate the claim in light of all pertinent evidence and legal authority (to include consideration of whether any, or any further, staged rating, pursuant to Hart (cited above)), is appropriate. 8. If the benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication, and it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until 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); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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. 2011). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs