Citation Nr: 1332255 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 10-25 853 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for pseudofolliculitis barbae. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran served on active duty from July 1977 to November 1978. This matter comes before the Board of Veterans' Appeals (Board) from a June 2008 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which denied service connection for pseudofolliculitis barbae. In April 2012, the Veteran testified at a Travel Board hearing at the RO, before the undersigned Veterans Law Judge. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his pseudofolliculitis barbae had its onset in service, has been diagnosed post-service, and he has competently and credibly reported symptoms of a skin disorder of his face since active service. CONCLUSION OF LAW Pseudofolliculitis barbae was incurred in service. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159, 3.326(a). As the Veteran's claims are being granted herein, there would be no useful purpose in discussing whether VA satisfied the duties to notify and to assist the Veteran in his claims. II. Factual Background and Analysis The Veteran asserts that he currently has pseudofolliculitis barbae that had an initial onset during service. Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). The Federal Circuit Court recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Further, 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 U.S.C.A. § 1113(b) ; 38 C.F.R. § 3.303(d) . In order to prevail on the issue of service connection, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has rejected the view that competent medical evidence is required when the determinative issue in a claim involves either medical etiology or a medical diagnosis. Under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, supra; Buchanan v. Nicholson, supra. Lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011); but see Jandreau v. Nicholson, supra. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). It is the Board's responsibility to evaluate the entire record on appeal. 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. Service treatment records (STRs) reveal that in March 1978, the Veteran requested a "no shaving chit", and objective examination showed shaving irritation in the neck and lower facial area. The assessment was pseudofolliculitis. He was seen again in April 1978, May 1978, and June 1978, and continued to be issued no shaving chits. In early August 1978, it was noted that he continued to complain of pseudofolliculitis, and that he had been on "no shave" for 90 days and had no improvement. It was recommended that the Veteran be separated for the good of the Corps because of therapeutic failure. A few weeks later in August 1978, he was evaluated for a medical board, because of his no shave status due to pseudofolliculitis. It was noted that the Veteran's appearance before a medical board was not indicated and it was recommended that he be processed through the administrative procedures set forth in "reference B". On his separation examination in November 1978, clinical evaluation of the skin was normal A post-service VA treatment record showed that in June 2008, the Veteran reported having problems with bumps, pustules, and irritation in the beard area for several years. The assessment was pseudofolliculitis barbae, mild. The Veteran essentially contends that he currently has pseudofolliculitis barbae that had an initial onset during service. He contends that he was given several shaving profiles in service, and that a medical doctor in service recommended to his commander that he be processed for early discharge. He claims he was discharged from service after 16 months due to this condition. He claimed he has had VA and private medical treatment for this condition since service, and that he still had outbreaks on his face and neck even though he kept his beard short. The Board initially notes that the Veteran was seen on several occasions in service, in 1978, for complaints of pseudofolliculitis and to request a "no shaving chit". A medical board was recommended because after 90 days of no shaving there was no improvement, but eventually a medical board was not indicated. His separation examination in November 1978 appears to show that the pseudofolliculitis resolved prior to separation, as his separation examination report is negative for any report or findings of any skin problems. Thereafter, there was no written documentation of complaints, treatment, or findings of a skin disorder following service separation - until the VA treatment record dated in June 2008. However, throughout the course of this appeal, in his testimony in 2012, the Veteran has consistently stated that he experienced recurrences of the pseudofolliculitis he had during active service. Further, in support of his claim, the Veteran submitted a statement from his mother in which she reported that when he returned from service his face was severely infected with bumps that were white and full of puss. She claimed he was discharged from the Marine Corps because of his problem, and that the Veteran now kept a trimmed beard, but still has problems with bumps, although not as bad as if he shaved every day. The Board notes that the Veteran (and his mother) as laypeople are competent to report on and/or testify as to the onset and recurrence of the skin disorder, as it is observable by a layperson. See Jandreau v. Nicholson, supra; see also Buchanan v. Nicholson, supra. Also, lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, supra. Further, the Board finds his and his mother's accounts of having skin problems since service to be both competent and credible. Thus, there is no reason to doubt the Veteran's and his mother's statements as to the unremitting nature of his skin problems since active service. Based on the foregoing, and resolving reasonable doubt in the Veteran's favor, the Board finds that the current pseudofolliculitis has been chronic since separation from active service. The Board recognizes that the question of a medical nexus has not been addressed by a VA examination or other medical opinion. Nevertheless, the Board finds that this question has basically been answered in the affirmative by the Veteran himself. As noted previously, the Veteran has basically attested to ongoing symptoms of pseudofolliculitis barbae since service, and a post-service VA treatment record shows a diagnosis of mild pseudofolliculitis barbae. After a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence demonstrates that the Veteran's pseudofolliculitis barbae symptoms were chronic in service. The Veteran has provided credible testimony that he did have symptoms of pseudofolliculitis barbae during and after service, and his testimony is confirmed by STRs which reveal that the Veteran was seen for this disorder in service and had been placed on a no shave profile. Further, the weight of the competent evidence is at least in relative equipoise on the question of whether the Veteran's current pseudofolliculitis barbae may be related to active service. The Veteran suffered symptoms of pseudofolliculitis barbae during service and has suffered those same symptoms since service separation. See Horowitz v. Brown, 5 Vet. App. 217, 221-22 (1993) (finding that lay statements are competent on in-service symptoms and post-service symptoms that later formed the basis of diagnosis). For these reasons, and with resolution of reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for pseudofolliculitis barbae are met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 . In summary, based on the documented episodes of a pseudofolliculitis in service and on the Veteran's (and his mother's) competent statements regarding recurrent pseudofolliculitis and skin problems after active service, with the resolution of reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for pseudofolliculitis barbae have been met. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). ORDER Service connection for pseudofolliculitis barbae is granted. ______________________________________________ FRANK J. FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs