Citation Nr: 1513174 Decision Date: 03/27/15 Archive Date: 04/03/15 DOCKET NO. 13-03 555A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE 1. Entitlement to a higher (compensable) rating for pseudofolliculitis barbae (PFB), including the question of propriety of reduction of a 60 percent rating to a noncompensable level. 2. Entitlement to service connection for a low back disability. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Mark R. Lippman, Attorney at Law ATTORNEY FOR THE BOARD C.S. De Leo, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1973 to September 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2010 and February 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. (The issues of entitlement to a higher rating for PFB and entitlement to TDIU are addressed in the remand that follows the decision below.) FINDING OF FACT The Veteran's low back strain was as likely as not caused by service-connected bilateral pes planus with plantar fasciitis and bilateral Achilles tendonitis. CONCLUSION OF LAW The Veteran has a low back strain that is as likely as not the result of service-connected disability. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.310 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2014). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Any disability that is proximately due to or the result of a service-connected disease or injury is considered service connected, and when thus established, this secondary condition is considered a part of the original condition. 38 C.F.R. § 3.310. Additionally, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. Id. The Veteran asserts that his back disability was caused by his service-connected bilateral foot and ankle disabilities. A July 2010 SSA disability examination report shows that the Veteran claimed that he was unable to work due to low back, foot, and ankle problems. The examiner noted that the Veteran's movements were guarded and stiff, and also that he walked like "a duck." The examiner noted that the Veteran appeared "very accustomed to pain and discomfort." See SSA Disability Report. Correspondence from the Veteran's VA treating physician dated in July 2010 states that he was under her care for his service-connected disabilities of bilateral foot pain and ankle pain. The clinician also stated the Veteran had chronic back pain and opined it was possible that chronic foot and ankle pain could cause back pain due to changes in ambulation patterns, which added additional strain on the back. She concluded that "it [was] more likely than not the [the Veteran's] back pain [was] related to his service-connected disabilities." A July 2010 VA treatment record shows the Veteran reported his back pain was related to his foot and ankle disabilities. He reported that he walked on the side of his feet due to pain. An August 2010 VA physical therapy note shows the Veteran reported that at some time in 1982 he woke up with back pain and the pain has continued since that time. He reported that during flare-ups he experienced trouble walking and at times he was unable to move. He was employed as a bus driver, and explained that he experienced difficulty getting in and out of the bus. From his observation of the Veteran's ambulation and limping, the examiner noted that the Veteran would be unsuccessful walking a quarter of a mile. Additionally, although the Veteran removed the braces from around his ankle, it was difficult for him to get on the examination table. The examiner noted the Veteran was in need of a cane to assist with ambulation. Specifically, the examiner noted the Veteran's feet as "dysfunctional" and that it is difficult for him to ambulate. Another August 2010 VA physical therapy note shows the Veteran reported his back pain was 8/10 and that he felt better with therapy, but the pain eventually returned. A November 2010 VA treatment record shows the Veteran reported with low back pain. The diagnosis was acute ligament strain of the low back. In August 2010, the Veteran was afforded a VA examination to address the nature and etiology of his back disability. The examiner's report reflects that the claims file was not made available for review and based upon the records presented, he opined that the Veteran's back pain was "less likely as not caused by or a result of his ankle and foot difficulties with Achilles tendinitis, pes planus and plantar fasciitis," finding that it "may have been possible" that the Veteran's service-connected foot and ankle disabilities contributed to his back pain but his back symptoms began approximately 20 years after service discharge and "there is no definite causal link that can be ascribed to his foot and ankle problems." The examiner also opined that "there is no medical way that [he is] aware of to ascribe [the Veteran's] back symptoms to his foot and ankle pain" finding that "it [was] more likely to have been related to [the Veteran's] job as a bus driver requiring hours of sitting and enduring vibration and ergonomic stresses imposed by that environment." A May 2011 VA podiatric examination shows the Veteran presented with pain of the low back, feet, and ankles. The Veteran reported that he experienced arch and Achilles tendon pain in service, and that he was forced to march despite the problems he had with his feet. This was treated with inserts and a block of wood to be placed in the front part of his shoes, which he discontinued after approximately 1 year because of discomfort. He also reported that he was given the "wrong inserts." The Veteran reported that at times the pain was so severe he was unable to walk around his home and that he must crawl. The examiner noted the Veteran continued to stand up to relieve pressure on his back. He also observed the Veteran wore aertex shoes with air casts, and leaned forward when he walked with his hands clutched. There was an excessive amount of rotation at the hips. The examiner explained that the Veteran had significant foot and ankle issues that continued to be symptomatic even though he wore appropriate shoes, inserts, and air casts. Additionally, the examiner opined "it is more [the Veteran's] significant back pain that keeps him from being active rather than his foot issues." The examiner explained that she was unable to determine with certainty how much of the Veteran's back pain was due to the foot pathology and opined "perhaps 20% back pain is directly associated with his flatfeet and hip rotation . . . and that his back pathology is secondary to his foot issues." Lastly, the examiner opined that "the greater majority of his back pain is due to inherent pathology in is back" and great stress on his back is attributable to driving a bus, changing tires, and marching in the military. The Board notes that for a Veteran to prevail in his claim for entitlement to service connection it must only be demonstrated that there is an approximate balance of positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for benefits to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, at 54 (1990). While the evidence does not overwhelmingly support the grant of secondary service connection for a back disability, the Board finds that it cannot conclude the preponderance of the evidence is against the claim of service connection. As indicated above, the Veteran asserts that his back disability is the direct result of his service-connected ankle and foot disabilities. Although the August 2010 VA examiner determined that the Veteran's back pain was "less likely as not caused by or a result of his ankle and foot difficulties with Achilles tendinitis, pes planus and plantar fasciitis," the Veteran's VA treating physician explained it was possible that the Veteran's service-connected foot and ankle disabilities had caused his back pain due to changes in ambulation patterns and adding additional strain on the back. Also, another VA clinician opined that about 20 percent of the Veteran's back pain was directly associated with his service-connected foot disability, which has impacted his ability to walk normally. She also determined that the Veteran's back pathology was secondary to his service-connected foot disability. The Board finds that the evidence is at least in equipoise as to whether the Veteran's service-connected bilateral ankle and foot disabilities are related to his current back disability. Therefore, reasonable doubt must be resolved in favor of the Veteran, and service connection for a back strain is warranted. The Veteran's testimony and the opinions provided by his treating physicians are credible evidence and reasonably demonstrate a causal nexus between the Veteran's current diagnosis of a back strain and his service-connected foot and ankle disabilities. ORDER Entitlement to service connection for a low back strain as secondary to service-connected bilateral pes planus with plantar fasciitis and bilateral Achilles tendonitis is granted. REMAND In a May 2005 rating decision, the RO granted service connection for PFB, effective August 16, 2004, under DC 7800-7806. (Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.) Thereafter, the RO increased the evaluation to 30 percent effective August 16, 2004. In a July 2008 rating decision, the RO increased the evaluation to 60 percent, effective April 22, 2008. In September 2010, the RO proposed a reduction in the rating, and in a February 2011 rating decision the RO decreased the evaluation to 0 percent. The Veteran was afforded a VA examination of the skin in April 2005. Upon review of his STRs, the examiner noted that the Veteran had a history of pseudofolliculitis during service and that treatment included limiting his shaving. He denied any secondary infections or neoplasm and reported a burning sensation on his face and neck. On examination, there were approximately 3-dozen lesions on the anterior face to include the cheeks and neck, and 2 percent of the exposed body area, but less than 1 percent of the total body surface. The diagnosis was pseudofolliculitis. The examiner's report reflects the lesions were neither disfiguring nor dysfunctional and there were no disfiguring scars. A March 2006 VA dermatology note shows the Veteran reported that the pseudofolliculitis on his face was getting better. The examiner's report reflects most of the pseudofolliculitis of the face had cleared up, and that there were a few small post-inflammatory hyperpigmentations. The Veteran was afforded a VA general medical examination in August 2010. On examination, the Veteran reported that he shaved once a week. The examiner noted what appeared to be approximately a one-week beard. There was residual pseudofolliculitis on the left side of the neck at the border of the beard. There were also six lesions that measured 2 to 3 millimeters and several lesions of the skin covering less than 1 percent of the exposed area, and less than 1 percent of the total body surface area. There were no pustular lesions. A September 2010 private treatment record from R.P., M.D. shows that the Veteran's skin was clear of rashes and there was no icterus or cyanosis. A treatment note dated in October 2010 shows that the Veteran was going to try to shave with an electric razor with use of hydrocortisone and benzoyl peroxide. A switch in medication would be tried if there was no improvement in one month. A November 14, 2010, treatment note shows that the Veteran had not started treatment. PFB in this Veteran's case apparently has been affected by regular shaving. Why the Veteran has disagreed with the reduction in rating is not entirely clear except that he appears to assert that his skin disability affects him in ways beyond what the rating criteria contemplate. If he continues to have lesions beyond what the evidence showed in 2010, this needs to be determined. If, on the other hand, his having to go without shaving has somehow affected him, this also needs to be determined. In order to better ascertain the extent of disability, another VA examination should be scheduled, especially in light of the fact that it has been several years since his last examination. With respect to the Veteran's TDIU claim, in light of the granted benefit of service connection for a back disability, and because of the remand to address the PFB rating claim, the TDIU claim must be readjudicated by the agency of original jurisdiction (AOJ) in the first instance. On remand, attempts should also be made to obtain any outstanding treatment records (VA or private) relevant to the Veteran's appeal. Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding medical records (VA or private) relevant to the Veteran's claim for a higher rating for PFB and entitlement to TDIU. Any additional treatment records identified by the Veteran should be obtained and associated with the claims file. (Consent to obtain records should be obtained where necessary.) 2. Thereafter, schedule the Veteran for an examination of his PFB. Unretouched photographs should be obtained and included in the record. The examiner should identify all lesions, including any scars, and describe each in detail, including the size and each disfiguring characteristic, if any. The Veteran should be asked to provide a detailed history of the problems his PFB cause and the treatment he undertakes to control it. Findings necessary to apply the pertinent rating criteria should be made. 3. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claims based on the entirety of the evidence. (Consideration should be given to a rating for a low back strain before adjudicating the TDIU claim.) If a benefit sought is not granted, the Veteran and his attorney should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. The appellant 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 2014). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs