Citation Nr: 1320218 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 09-23 456 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to a compensable rating for pseudofolliculitis barbae. 2. Entitlement to service connection for asthma. ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from September 1976 to September 1980. . This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In September 2011, the Board remanded the appeal for further development, and it now returns to the Board for appellate review. The Board notes that, in addition to the issues on appeal, in September 2011the Board remanded the issues of entitlement to service connection for hypertension and sinusitis. These claims were granted in a March 2013 Decision Review Officer decision. Therefore, these issues are no longer before the Board. In his July 2009 substantive appeal (VA Form 9), the Veteran requested a personal hearing before a Veterans Law Judge. The hearing was scheduled for May 2011, but the Veteran did not attend. As no further communication from the Veteran with regard to a hearing has been received, the Board considers his request for a hearing to be withdrawn. See 38 C.F.R. §§ 20.702(d), (e); 20.704(d), (e) (2012). The issue of entitlement to a compensable rating for pseudofalliculitis barbae is addressed in the REMAND portion of the decision below and is remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The medical evidence does not establish a currently diagnosed disability of asthma or a diagnosis of asthma at any point during the claim period. CONCLUSION OF LAW Asthma was not incurred in the Veteran's active duty military service. 38 U.S.C.A. § 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Stegall Considerations This case was remanded by the Board in September 2011. The United States Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders." See Stegall v. West, 11 Vet. App. 268, 271 (1998). The purpose of the remand was to achieve further development of the claim, namely to obtain outstanding VA treatment records and to schedule a VA examination to assess the existence and etiology of the Veteran's asthma. A review of the post-remand record shows that VA treatment records through November 2012 have been associated with the claims file and that the VA examination was completed in February 2013. Therefore, the Board determines that the RO/AMC substantially complied with the Board's orders in the September 2011 remand, and that the Board may now proceed with adjudication of the claim. II. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claim and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claim. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA must inform a claimant about the information and evidence not of record that is necessary to substantiate the claims, the information and evidence that VA will seek to provide, and the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (revised 73 Fed. Reg. 23353-23356, April 30, 2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements also apply to the evidence considered in determinations of the degree of disability and effective date of the disability once service connection has been established. VCAA notice must be provided before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claims for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided with a VCAA notification letter in January 2008, prior to the initial unfavorable AOJ decision issued in August 2008. The Board observes that the pre-adjudicatory VCAA notice informed the Veteran of the evidence necessary to establish service connection, of how VA would assist him in developing his claim, and of his and VA's obligations in providing such evidence for consideration. This letter also advised him of the evidence required to substantiate disability ratings and effective dates. Therefore, the Board finds that the Veteran was provided with all necessary VCAA notice prior to the initial adjudication of the claim. Accordingly, the Board determines that the content requirements of VCAA notice have been met and the purpose of such notice, to promote proper development of the claim, has been satisfied. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir.). Based on the above, the Board finds that further VCAA notice is not necessary prior to the Board issuing a decision. VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim and providing him with a VA examination. The Veteran's VA treatment records and the report of a February 2013 VA examination were reviewed by both the AOJ and the Board in connection with adjudication of the claim. The Veteran has not identified any additional, relevant treatment records the Board needs to obtain for an equitable adjudication of the claim. With regard to the VA examination, the Board notes that once VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, the examiner reviewed the claims file, documented the Veteran's subjective complaints and history, and evaluated the Veteran. The examiner then provided an opinion as to diagnosis and etiology that was supported by a rationale based on all the available evidence. There is nothing to suggest that the opinion is not sufficiently grounded in the facts of the case or that the examiner reached an arbitrary conclusion. For these reasons, the Board finds the February 2013 VA respiratory examination report adequate for rating purposes. 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 light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the Veteran's claim without further development and additional efforts to assist or notify the Veteran in accordance with VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). Therefore, the Board determines that the Veteran will not be prejudiced by the Board proceeding to the merits of the claim. III. Analysis Service connection may be granted for disability arising from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge 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 order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr, 21 Vet. App. at 309. The Veteran contends that he has asthma that first manifested in service. Therefore, he contends that service connection is warranted for this disability. Service treatment records do not reflect and complaints, treatment, or diagnosis of asthma. The Board notes that there are service treatment notes that relate to sinusitis/allergic rhinitis, but these disabilities are separately service-connected. There are no notes relevant to a pulmonary disability in service. The Board observes that the Veteran has carried a diagnosis of asthma since 2012 when VA treatment notes began reporting asthma, unspecified in the Veteran's problem list. VA treatment records show that a questionable diagnosis of asthma was noted in October 1996, and there was an impression of asthma in August 1999, although the basis for that impression is unclear. A December 1996 pulmonary function test (PFT) was normal with only a diagnosis of chronic rhinitis noted. Asthma was then diagnosed in VA treatment notes from 2012 when the Veteran was seen for shortness of breath and cough, and he was prescribed an inhaler. However, contemporaneous PFTs were noted to not be consistent with either obstructive or restrictive pulmonary disease, and the Veteran reported that while he used his inhaler frequently, it did not alleviate his symptoms. The February 2013 VA examiner performed a pulmonary function test that revealed function at or above 100 percent. The examiner indicated that the Veteran's claimed asthma was less likely than not a result of military service on the basis that the Veteran does not have asthma. The examiner noted that the Veteran does not currently meet the PFT criteria for asthma, had no in-service treatment for asthma, had not been diagnosed with asthma until 2012 when a non-pulmonologist diagnosed the disability based on clinical symptoms without testing, and has both allergic rhinitis and obstructive sleep apnea, which could cause the respiratory symptoms the Veteran was experiencing. The Board acknowledges the Veteran's assertions that he has had asthma since service. Under certain circumstances, lay statements may serve to support a claim for service connection by suggesting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran is competent to speak to respiratory symptoms, but as the record reflects that there are multiple causes of such symptoms, he lacks the medical and technical knowledge to ascribe those symptoms to asthma. Therefore, the Board determines that the Veteran's lay statements are insufficient evidence to conclude the Veteran has or has had asthma. In light of the above, the Board concludes that the Veteran does not have a current disability of asthma. Although the Veteran believes he has asthma, the diagnosis of this disability is a medical question that requires medical expertise to address. See Jandreau v. Nicholson, 492 F.3d. 1372 (Fed. Cir. 2007) (holding that some disabilities are not capable of lay observation). The only medical examination that addresses the question of the existence of asthma is the February 2013 VA examination that determined the Veteran's pulmonary function test did not establish a diagnosis of asthma. There is insufficient evidence of a diagnosis of asthma at any point during the claim period. See McClain v. Nicholson, 21 Vet. App. 319 (2007). While there was a possible diagnosis of asthma prior to the Veteran's claim and an indication of diagnosis and treatment of asthma during the appeal period, these diagnostic impressions were based on the Veteran's self-reported medical history and symptoms. PFT results do not support a diagnosis of asthma at any time since service, and his clinical symptoms have been noted to have multiple potential causes. Accordingly, the Board determines that a preponderance of the evidence is against a finding that the Veteran has a current disability of asthma. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Where there is no disability, there can be no entitlement to compensation. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Absent a finding of a current disability, the criteria for entitlement to service connection for asthma are not met. ORDER Entitlement to service connection for asthma is denied. REMAND Regrettably the Board determines that another remand is necessary so that another VA examination may be scheduled to assess the current severity of the Veteran's pseudofolliculitis barbae. The Veteran was last afforded a VA examination for this claim in May 2008, and while the record does not indicate a change in severity, the Board's review of the record indicates that the examination provided an insufficient basis for determining the appropriate disability rating. The Veteran contends that he meets the criteria for a 10 percent rating for pseudofolliculitis barbae because he has six square inches of hyperpigmented skin in his chin and neck area. The Board notes that the appearance of one's skin is a symptom capable of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). At his February 2003 VA examination, the examiner noted hyperpigmented skin of the chin and neck, but at the May 2008 VA examination, no hyperpigmentation was found. As the hyperpigmentation is due to prior active symptomatology and infection, the Board is unclear as to whether it would wholly disappear. Moreover, the rating criteria indicate that unretouched photographs are to be taken into consideration. The photographs are not required by the rating criteria, but considering the inconsistent statements regarding hyperpigmentation, the Board determines that they would be helpful in its adjudication of the merits of the pseudofalliculitis barbae claim. Accordingly, the Board remands the increased rating claim for another VA examination. Additionally, as the claim is being remanded for other reasons, the Board determines that additional treatment records should be sought. The Veteran should be requested to identify all relevant private treatment for his skin disability and to either submit the records directly to VA or authorize VA to obtain them on his behalf. Further, the Board observes that the Veteran receives treatment within the VA Central California Health Care System (HCS). The most recent VA treatment record is dated in November 2012. Therefore, all VA treatment notes for the Veteran dated from November 2012 from the Central California HCS and any associated outpatient clinics should be added to the claims file. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file). Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify all relevant private treatment records and complete a VA Form 21-4142, Authorization and Consent to Release Information to VA, for each treatment provider or submit the records directly to VA. Obtain any records identified by the Veteran. All attempts to obtain the records must be documented in the claims file. 2. Associate with the claims file all VA treatment records for the Veteran from the Central California Health Care System and its associated outpatient clinics and dated from November 2012 forward. All requests and responses, positive and negative, must be documented in the claims file. 3. Schedule the Veteran for a VA skin examination. The claims file must be made available for review and the report must reflect that such review occurred. All necessary tests should be conducted. With regard to the Veteran's head, face, and neck, the examiner should determine whether the Veteran's pseudofolliculitis barbae, to include any resulting scars, has resulted in (1) visible or palpable tissue loss; (2) gross distortion or asymmetry of any feature or any paired set of features (nose, chin forehead, eyes (including eyelids), ears (auricles), cheeks, and/or lips; and/or (3) any of the eight characteristics of disfigurement described in 38 C.F.R. § 4.118, Diagnostic Code 7800, Note (1) (2008), with specific attention as to the measurements of the hyperpigmented area of the bearded area, chin, and neck in either square inches or centimeters. Color photographs of affected areas should be taken and included with the examination report. The examiner should also describe the total area of the Veteran's body that is affected by his pseudofolliculitis barbae. In providing this description, the examiner should state (1) the percent of the entire body affected, and (2) the percent of the exposed areas (i.e., the face and neck) that are affected. The examiner should also indicate whether the Veteran's pseudofolliculitis barbae scars are superficial (not associated with underlying soft tissue damage), deep (associated with underlying soft tissue damage), cause limitation of motion, are unstable (has frequent loss of covering of skin over the scar), and/or are painful on examination. The examiner should also indicate whether any of the scars cause any limitation of the affected part. Additionally, the examiner should indicate whether systemic therapy, such as corticosteroids or other immunosuppressive drugs were required during the last 12-month period, and, if so, whether this therapy was (1) constant or near-constant, (2) required for a total duration of 6 weeks or more, but not constantly, during the last 12-month period, (3) or required for a duration of less than 6 weeks during the past 12-month period. A complete rationale for any opinion offered must be provided. 4. Notify the Veteran that it is his responsibility to report for any examination scheduled and to cooperate in the development of the claim. The consequences for failure to report for any VA examination without good cause may include denial of one or more of his claim. See 38 C.F.R. §§ 3.158, 3.655 (2012). 5. After completing the above development, and any other development deemed necessary, readjudicate the issue on appeal. If any benefit sought remains denied, provide a supplemental statement of the case to the Veteran and his representative, if any, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. 2012). _________________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs