Citation Nr: 1331146 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 09-27 122 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for pseudofolliculitis barbae. 2. Entitlement to service connection for residuals of a head/neck and back injury. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran served on active duty from July 1974 to August 1984. This case comes before the Board of veterans' Appeals(Board) on appeal from an April 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In June 2013, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of this hearing was prepared and associated with the Veteran's Virtual VA file. The Board has reviewed the Veteran's Virtual VA file and has considered the relevant records contained therein. The issues of entitlement to service connection for residuals of a neck/head and back injury 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 competent and probative evidence of record reflects that the Veteran has pseudofolliculitis barbae that is etiologically related to his military service. CONCLUSION OF LAW The Veteran has pseudofolliculitis barbae that was incurred in service. 38 U.S.C.A. §§ 1110, 5107, 7104 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Preliminary Matters Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In the instant case, since the Veteran's claim for service connection for pseudofolliculitis barbae is being granted, any deficiencies with regard to VCAA are harmless and nonprejudicial and VCAA analysis is not required. II. Legal Criteria and Analysis The Veteran has claimed entitlement to service connection for pseudofolliculitis barbae, which he essentially contends originated during his military service. In general, applicable laws and regulations state that service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That a condition or injury occurred in service alone is not enough; there must be disability resulting from that condition or injury. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In the case at hand, the competent and probative evidence of record establishes that the Veteran has an in-service diagnosis of pseudofolliculitis barbae, a current diagnosis of pseudofolliculitis barbae, and that there is a continuity of symptomatology between the in-service symptomatology and the current disability. With respect to an in-service disability, the Board notes that the Veteran's service treatment records reflect that he was routinely treated during service for pseudofolliculitis barbae. There are numerous entries showing diagnoses of, treatment of and shaving profiles due to pseudofolliculitis barbae. The record is clear and there is no question that the Veteran had pseudofolliculitis barbae in service. As to a current disability and relationship to service, the evidence shows the Veteran has continued to have pseudofolliculitis barbae since service. Indeed, a March 2011 letter from the Veteran's private treating physician states that the Veteran has suffered from chronic pseudofolliculitis barbae since 1979 when the Veteran was in service and the same has continued after service. A VA contract examination of May 2009 notes a diagnosis of pseudofolliculitis barbae. The examiner opined that pseudofolliculitis barbae is less than likely related to military service even though it appears in military medical records. The examiner stated it would be speculation to relate it to military service as pseudofolliculitis barbae is directly related to shaving, whether it be in or out of service. An October 2012 lay statement from one of the Veteran's co-workers states that he had worked with the Veteran for 22 years and had noticed numerous occasions when he had bumps and facial lesions on his cheek and chin area. In statements, the Veteran stated that he had not experienced pseudofolliculitis barbae prior to service because he did not have to shave as often prior to entering service. The Board finds that the May 2009 examiner's opinion noted above is contradictory and affords it little probative weight as the examiner does not appear to take into account the Veteran's credible reports. The Board recognizes that a lay person, such as the Veteran, is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). However, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and 'may provide sufficient support for a claim of service connection.' Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). In the case at hand, the Board finds that the Veteran is competent to report that he did not have skin problems on his face prior to his entry into service but that he did experience such symptoms during service. The assertion is further supported by the evidence of record. Indeed, the entrance examination of February 1979 showed the Veteran's face to be normal. Also, the accompanying Report of Medical History also date din February 1979 notes the Veteran denied any prior skin diseases. The competency of an individual to testify, however, must be distinguished from the credibility of the testimony. In the case at hand, the Board also finds that the Veteran's statements are credible for purposes of establishing the lack of symptoms prior to service. Indeed, as noted, the entrance examination notes the Veteran's face was normal. The Board thus finds that the competent evidence of record establishes that the Veteran had pseudofolliculitis barbae in service and has a current diagnosis of pseudofolliculitis barbae. Furthermore, even considering the May 2009 examiner's opinion, the Board finds that the Veteran's statements are sufficient to establish an onset in service, as well as ongoing disability thereafter. In short, the Board finds that the Veteran's pseudofolliculitis barbae is related to his military service. Therefore, the Board finds that service connection for pseudofolliculitis barbae is warranted, and the benefit sought on appeal is granted. ORDER Entitlement to service connection for pseudofolliculitis barbae is granted. REMAND The Veteran seeks service connection for residuals of a neck/head and back injury in service. After a review of the evidence of record, the Board finds that additional development is needed prior to deciding the claim. A review of the service treatment records shows that in May 1978 the Veteran was seen for upper back pain lasting a day following a fall. He was diagnosed with contusion of the thoracic spine. In November 1979 the Veteran was seen for complaints of upper back pain lasting three days. He was diagnosed with back strain, etiology unknown. In August 1982, the Veteran fell on his back and complained of acute thoracic spine pain. In September 1982, he was seen for complaints of back and neck pain. It was noted he had been previously treated by physical therapy and was once again referred to physical therapy. The Veteran has argued in statements and at the personal hearing that he continued to have back and neck problems since service. A May 2009 VA examination noted diagnoses of degenerative arthritis of the lumbar spine, thoracolumbar strain, minor s-curve in thoracic spine, and cervical strain. The examiner opined that it is less than likely that the Veteran's back condition of degenerative arthritis and thoracolumbar strain, minor s-type curve, is related to in-service condition as a contusion is a soft tissue injury that more than likely resolves and does not lead to arthritis or thoracolumbar strain. The examiner noted that in reaching the opinion, he considered an undated military progress note with a diagnosis of contusion to the thoracic spine. The Board finds that the opinion is inadequate for appellate review and a new opinion is needed prior to deciding the claim. In this regard, the Board notes that the examination report reflects no meaningful review of the Veteran's service treatment records. Indeed, the examiner noted a single service treatment record which was undated which showed a diagnosis of contusion of the thoracic spine. However, a review of the service treatment records shows that the Veteran experienced back problems throughout service. Indeed, from 1979 to 1982, the records show multiple instances of complaints of neck and back pain and more than one injury or fall. Moreover, the examiner reasoned that a contusion most often resolves; however, the service treatment records tend to show a different picture with continuous multiple complaints throughout service. Accordingly, the Board finds the opinion to be inadequate and finds that a new examination is needed. Accordingly, the case is REMANDED for the following action: 1. Arrange for the Veteran to undergo an orthopedic VA examination to determine the nature and etiology of any current residuals of a head/neck and back injury. The claims folders must be thoroughly reviewed by the examiner in connection with the examination, and a complete history should be elicited directly from the Veteran. The examiner must be given access to the Veteran's Virtual VA file for review of all relevant records contained therein. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The examiner should identify any pertinent pathology found and should diagnose any current residuals of head/neck and back injury(ies). As to any pertinent disability identified on examination, the VA examiner should express an opinion as to whether it is at least as likely as not (a 50 percent probability or more) that any such disability had its onset in service, was aggravated by service, or is otherwise related to any incident of service, to include as a result of an in-service head/neck and back injury(ies). Any opinion expressed must be accompanied by a complete rationale. 2. After the development requested above has been completed, again review the record. If any benefit sought on appeal remains denied, the appellant and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. T he Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or 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). ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs