Citation Nr: 1338442 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 11-04 441 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for intervertebral disc syndrome (IVDS), lumbar spine. 3. Entitlement to service connection for pseudofolliculitis barbae. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from July 1999 to November 2004, and from February 2005 to January 2009, including for several years in Iraq. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. A videoconference hearing before the undersigned Veterans Law Judge of the Board was held in July 2013. There has been considerable additional evidence received without RO initial consideration, though such review is not required given the Board's grant of the benefits sought herein. FINDINGS OF FACT 1. Hypertension and a lumbar spine disorder were incurred to a compensable degree within one year of service discharge. 2. Pseudofolliculitis barbae was incurred in service. CONCLUSIONS OF LAW 1. The criteria are met to establish service connection for hypertension. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). 2. The criteria are met to establish service connection for lumbar spine intervertebral disc syndrome. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). 3. The criteria are met to establish service connection for pseudofolliculitis barbae. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) provides that VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Because the claims are being granted, any error related to the VCAA is rendered moot. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). Generally, under the law, service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303(a) (2013). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). The elements of a valid claim for direct service connection are as follows: (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 current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). Certain conditions involving what are recognized as diseases of a chronic nature, such as degenerative arthritis, as well as cardiovascular disease, will be presumed to have been incurred in service if manifested to a compensable degree within one year after service. 38 U.S.C.A. §§ 38 U.S.C.A. 1101, 1112 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013). Per 38 C.F.R. § 3.309(a), the term "cardiovascular-renal disease" for purposes of that regulation applies to the combination involvement of the type of arteriosclerosis, nephritis, and organic heart disease under consideration, including hypertension inasmuch as this is an early symptom preceding development of those diseases in their more obvious forms.) In those instances in which medical evidence is still required to establish a direct causal linkage back to service, where a chronic disease is shown during service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. Continuity of symptomatology is required where the condition noted during service is not shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. Under the latter circumstances, a showing of continuity of symptomatology at the time of service discharge and continuing thereafter is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has since clarified in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) that the availability of continuity of symptomatology as a principle to substantiate service connection is limited to where involving those above-referenced diseases denoted as "chronic" (and for which presumptive service connection is otherwise available) under 38 C.F.R. § 3.309(a). Hypertension As indicated, service connection is available for hypertension on a presumptive basis as a chronic disease, where incurred within one year of separation from service. Pursuant to a May 2009 VA Compensation and Pension examination, the Veteran had blood pressure readings taken of 195 (systolic) / 91 (diastolic), 166/103, 150/93; the next day 143/85, 144/93, 141/95; then 144/89, 137/100, 132/81. The diagnosis was, in pertinent part, hypertension. The VA examination was completed within a few months of separation from service, within the requisite timeframe for presumptive service connection. Moreover, resolving reasonable doubt in the Veteran's favor, the Board finds hypertension manifested to a compensable level, given consistent diastolic readings at or near 100, as well as likely need for medication for control. See 38 C.F.R. § 4.104, Diagnostic Code 7101. Accordingly, the criteria for service connection for hypertension on a presumptive basis are met. Lumbar Spine Disorder The Board also finds sufficient grounds to award service connection for lumbar spine intervertebral disc syndrome on a presumptive basis. The Veteran's IVDS condition has an orthopedic component analogous to arthritis, and was also diagnosed pursuant to the May 2009 VA Compensation and Pension examination within one year of service discharge. There was attendant limitation of motion to bring the symptomatology shown within the purview of compensable disability. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (General Rating Formula for Diseases and Injuries of the Spine). While the Veteran also had documented back injury and symptomatology in service, the Board need not further consider the question of a medical corroboration of a direct causal linkage to service, inasmuch as presumptive service connection requirements are already established. Therefore, the criteria for granting service connection are met. Psuedofolliculitis Barbae Following VA examination in May 2009, the Veteran was also diagnosed with psuedofolliculitis barbae, which he subjectively reported as having had its onset about nine years previously. This date of onset was roughly contemporaneous with beginning military service, and considering also that the condition was diagnosed just a few months after service, and there is no evidence to the contrary on the issue of causal nexus, in all reasonable likelihood the Veteran's pseudofolliculitis barbae can be deemed to be of service origin. The criteria for service connection are effectively met. ORDER Service connection for hypertension is granted. Service connection for intervertebral disc disease of the lumbar spine is granted. Service connection for pseudofolliculitis barbae is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs