Citation Nr: 1619083	
Decision Date: 05/11/16    Archive Date: 05/19/16

DOCKET NO.  06-02 997	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1.  Entitlement to service connection for a nasal/sinus disorder.

2.  Entitlement to an effective date earlier than July 12, 2004, for the award of service connection for pseudofolliculitis barbae and acne keloidosis of the scalp.

3.  Entitlement to a rating in excess of 10 percent for service-connected right knee chondromalacia patella.

4.  Entitlement to a rating in excess of 10 percent for service-connected left knee chondromalacia patella.

5.  Entitlement to a rating in excess of 10 percent for service-connected pseudofolliculitis barbae and acne keloidosis of the scalp.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

James R. Springer, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1982 to January 1987, and from January 1990 to July 1993, and had service in the United States Army Reserves from January 1987 to December 1989.

These matters come before the Board of Veterans' Appeal (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA).  In October 2004, the Regional Office (RO) in Columbia, South Carolina, denied service connection for a nasal/sinus disorder.  In July 2010, the RO in Huntington, West Virginia, granted service connection for pseudofolliculitis barbae and acne keloidosis of the scalp, and assigned a 10 percent rating effective July 12, 2004.  In June 2013, the RO in Columbia, South Carolina, denied the Veteran's claims for increased rating for chondromalacia patella of the left and right knees, and pseudofolliculitis barbae and acne keloidosis of the scalp.

In January 2005, the Veteran participated in an informal hearing conference in connection with his claim for service connection for a nasal/sinus disorder.  The Informal Conference Report is of record.

In March 2009 and February 2011, the Board remanded the Veteran's appeal for additional development.  The case has now returned for further appellate review.

In November 2011, the Veteran's representative indicated that he wanted a video conference hearing before a Veterans Law Judge.  However, in December 2014, the Veteran's representative indicated that he no longer wished to have a hearing.  Therefore, his hearing request is withdrawn.  38 C.F.R. § 20.704(e) (2015).

Finally, the Board notes that, in December 2015, the Veteran notified VA that he disagreed with the June 1, 2015, effective date assigned in a June 2015 rating decision that granted service connection for tender scars of the head, face, or neck and assigned 30 percent rating.  However, in a July 2015 notification letter, the AOJ informed the Veteran that, in order to initiate an appeal of the June 2015 rating decision, he must complete and return the enclosed VA Form 21-0958, Notice of Disagreement.  When the AOJ provides the Veteran with a standardized form for initiating appeals, which in this case is VA Form 21-0958, a valid notice of disagreement consists only of a completed and timely-submitted copy of that form, and that no expression of disagreement in any other form constitutes a valid notice of disagreement.  38 C.F.R. § 20.201 (2015).  Thus, the Veteran's December 2015 expression of dissatisfaction with the assigned effective date does not constitute a valid notice of disagreement with the June 2015 rating decision.  The Board reminds the Veteran that he still has until June 2016, to submit a completed VA Form 21-0958 in order to initiate an appeal of the June 2015 rating decision.

This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems.


FINDINGS OF FACT

1.  The presumption of soundness is not rebutted and, resolving all reasonable doubt in favor of the Veteran, his current nasal/sinus disorder, diagnosed as allergic rhinitis and sinusitis, had its onset during active service.

2.  The Veteran's informal claim for service connection for pseudofolliculitis barbae and acne keloidosis of the scalp was received by VA on August 4, 2004.

3.  Service connection for pseudofolliculitis barbae and acne keloidosis of the scalp was granted, effective July 12, 2004, the date the Veteran's informal claim for service connection was received by VA.

4.  The claims file contains no other informal or formal claim, or any written intent to file a claim for service connection for pseudofolliculitis barbae and acne keloidosis of the scalp prior to July 12, 2004.

5.  Throughout the appeal period, the Veteran's service-connected right knee chondromalacia patella was manifested by subjective complaints of pain, swelling, flare-ups, and difficulties performing activities of daily living, including driving, bending, and stooping; crepitus; traumatic arthritis confirmed by X-ray; objective evidence of painful motion; flexion that was limited to no less than 120 degrees, and extension that was limited to no less than zero degrees, even after repetitive use.  His service-connected right knee chondromalacia patella was not manifested by recurrent subluxation, instability, removal of the semilunar cartilage, a meniscus condition, ankylosis, impairment of the tibia or fibular, or genu recurvatum.

6.  Throughout the appeal period, the Veteran's service-connected left knee chondromalacia patella was manifested by subjective complaints of pain, swelling, flare-ups, and difficulties performing activities of daily living, including driving, bending, and stooping; crepitus; traumatic arthritis confirmed by X-ray; objective evidence of painful motion; flexion that was limited to no less than 120 degrees, and extension that was limited to no less than zero degrees, even after repetitive use.  His service-connected left knee chondromalacia patella was not manifested by recurrent subluxation, instability, removal of the semilunar cartilage, a meniscus condition, ankylosis, impairment of the tibia or fibular, or genu recurvatum.

7.  Throughout the appeal period, the Veteran's pseudofolliculitis barbae and acne keloidosis did not cover an area of 20 percent to 40 percent of the entire body or an area of 20 percent to 40 percent of the exposed area; and did not require the use of systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during any relevant twelve month period.




CONCLUSIONS OF LAW

1.  Resolving all reasonable doubt in favor of the Veteran, a nasal/sinus disorder, was incurred in service.  38 U.S.C.A. §§ 1101, 1111, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015)

2.  The claim for an effective date prior to July 12, 2004, for the award of service connection for pseudofolliculitis barbae and acne keloidosis of the scalp is without legal merit.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. §§ 3.155, 3.400 (2015).

3.  The criteria for a rating in excess of 10 percent for the Veteran's service-connected right knee chondromalacia patella are not met.  §§ 1155, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5256-5263 (2015).

4.  The criteria for a rating in excess of 10 percent for the Veteran's service-connected left knee chondromalacia patella are not met.  §§ 1155, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5256-5263 (2015).

5.  The criteria for a rating in excess of 10 percent for the Veteran's service-connected pseudofolliculitis barbae and acne keloidosis are not met.  §§ 1155, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.118, Diagnostic Codes 7806, 7813, 7816 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. VA's Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC).  Id.; Pelegrini, 18 Vet. App. at 112; see also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).  However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Id.

As the Board's decision with regard to the Veteran's claim for service connection for a nasal/sinus disorder is completely favorable, no further action is required to comply with the VCAA and implementing regulations with regard to that claim.

With regard to the Veteran's claim for an earlier effective date, as service connection for pseudofolliculitis barbae and acne keloidosis of the scalp was granted in the July 2010 rating decision, and an initial rating and effective date assigned, the notice requirements have been met because the initial intended purpose of the notice has been served.  Additional notice is not required concerning these "downstream" effective date elements of the claims. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  VA's General Counsel has clarified that no additional notice is required for a downstream issue, including the assigned effective date, and that a Court decision suggesting otherwise is not binding precedent. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004).  Instead, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue a statement of the case (SOC) if the disagreement is not resolved.  Since the RO issued an SOC in November 2011 addressing the downstream effective-date claim, no further notice is required.  See Goodwin v. Peake, 22 Vet. App. 128 (2008); Huston v. Principi, 17 Vet. App. 195 (2003).

With regard to the Veteran's claims for an increased ratings, the Board finds that VA has satisfied its duty to notify under the VCAA.  Specifically, a November 2012 letter, sent prior to the initial unfavorable decision in June 2013, advised the Veteran of the evidence and information necessary to substantiate his increased rating claims, as well as his and VA's respective responsibilities in obtaining such evidence and information.  Additionally, the letter advised him of the information and evidence necessary to establish an effective date in accordance with Dingess/Hartman, supra.

The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  In any event, the Veteran has not demonstrated any prejudice with regard to the content of any notice.  See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.)  See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).

VA also has a duty to assist the Veteran in the development of the claim.  This duty includes assisting in the procurement of service treatment records and pertinent post-service treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The claims file contains the Veteran's available service treatment records, VA treatment records, private treatment records, and the Veteran's own contentions.  The Board notes that some of the Veteran's service treatment records are unavailable, including his service treatment records from his first period of active duty, as well as service treatment records from his period of service in the Reserves.  In a Formal Finding of Unavailability issued in December 2009, the RO indicated that, despite exhausting all reasonable efforts, the Veteran's complete service treatment records were unavailable, and that any further attempts to associate the Veteran's outstanding service treatment records with the record would be futile.  In situations such as this, VA has a heightened duty to consider the applicability of the benefit of the doubt rule and to assist in the development of a claim.  See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) citing Russo v. Brown, 9 Vet. App. 46, 51 (1996).  See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).

Furthermore, in connection with his claims for increased ratings, he has been given two VA examinations, most recently in June 2015.  There is no allegation or indication that the VA examinations are inadequate for rating purposes.  The Board also finds that the examinations reports of record are adequate in order to evaluate the Veteran's service-connected bilateral knee chondromalacia patella and pseudofolliculitis barbae and acne keloidosis of the scalp, as they include interviews with the Veteran, a review of his claims file, and full examinations addressing the relevant rating criteria.  Moreover, The Veteran has not alleged that his disabilities have worsened in severity since the June 2015 VA examinations.  See Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (the passage of time alone, without an allegation of worsening, does not warrant a new examination).  Therefore, the Board finds that the examinations of record are adequate to adjudicate the Veteran's claims.

With regard to the Veteran's claim for an earlier effective date, in February 2011, the Board remanded the Veteran's claim for additional development.  Specifically, the Board directed the AOJ to issue a statement of the case addressing the issue of entitlement to an earlier effective for the grant of service connection for pseudofolliculitis barbae and acne keloidosis of the scalp.  In November 2011, the AOJ issued a statement addressing the Veteran's claim, and he was informed of the time limit for filing a substantive appeal to the Board.  That same month, the Veteran perfected his appeal with respect to that issue.

Therefore, the Board finds that the AOJ has substantially complied with the February 2011 remand directives such that no further action is necessary in this regard.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

Thus, the Board finds that VA has fully satisfied the duty to assist.  In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided).  VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding.  Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claims.

II.  Service Connection for Nasal/Sinus Disorder

The Veteran has consistently argued that his current nasal/sinus disorder began during his first period of active duty service in 1982 while stationed in Korea, and that they have continued ever since.  In the Board's March 2009 remand, the Board found that the issue of whether the Veteran suffered from a preexisting nasal/sinus disorder prior to his second period of active duty service had been raised by the record.  Specifically, the Board highlighted a Report of Medical History from January 1990 wherein the Veteran complained of breathing and sinus problems.  Thus, the Board found that the issue of whether the Veteran was sound upon entrance into active duty had been raised.

As will be discussed in greater detail below, after resolving all reasonable doubt in favor of the Veteran, service connection for a nasal/sinus disorder is warranted as directly related to his active duty service.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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).

Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304.  See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)].

Every person employed in the active military, naval, or air service shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.  38 U.S.C.A. § 1111.

In July 2003, the VA General Counsel issued a precedent opinion holding that to rebut the presumption of soundness in 38 U.S.C.A. § 1111, VA must show, by clear and unmistakable evidence, (1) that the disease or injury existed prior to service, and (2) that the disease or injury was not aggravated by service.  VAOPGCPREC 3-2003 (July 16, 2003).  The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches.  Id.  See also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).  In order to demonstrate that the condition clearly and unmistakably preexisted service and was not aggravated by service, the evidence must be undebatable.  Quirin, 22Vet. App. at 396 (quoting Vanerson v. West, 12 Vet. App. 254, 258-59 (1999)).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. at 53.

A review of the record reflects that some of the Veteran's service treatment records are unavailable.  Specifically, in December 2009, the VA issued a formal finding of Unavailability of Service Treatment Records for the Veteran's first period of active duty service from February 1982 to January 1987, and his period of service in the Reserves from January 1987 to December 1989.  Thus, there is no way to tell if any nasal or sinus disorder was "noted" on his entrance examination in February 1982.  Therefore, as there is no evidence to the contrary, the Board presumes that an entrance examination was provided prior to his first period of active duty service, and that no nasal or sinus disability was noted.  See Quirin v. Shinseki, 22 Vet. App. 390, n5 (2009) (citing Lee v. Brown, 10 Vet. App. 336, 339 (1997) (holding that the presumption of soundness applies even when the record of a veteran's entrances examination has been lost of destroyed while in VA custody)).

With regard to the Veteran's second period of active duty service, in a January 1990 Report of Medical History, the Veteran indicated nose trouble.  In the notes section of the Report of Medical History, the examiner indicated that the Veteran complained of breathing and sinus problems.  On his January 1990 entrance examination, the Veteran's nose and sinus were noted to be normal.  The Board notes that the term "noted" denotes only such disorders that are recorded in examination reports.  The existence of disorders prior to active service reported by the veteran as medical history does not constitute notation of such disorders, but it will be considered together with all of the other evidence in questions as to the commencement of the disease or disorder.  38 C.F.R. § 3.304(b)(1) (2015).

Because there is no entrance examination from the Veteran first period of active duty service, and because a nasal or sinus disorder was not "noted" on his January 1990 entrance examination, the Veteran is presumed sound upon entrance for both period of service.

In addition to his January 1990 Report of Medical History, the Veteran's service treatment records reflect a number of complaints related to his sinuses.  In a June 1988 service treatment record from the Veteran's period of service in the Reserves, he denied ear, nose, or throat trouble.  In a January 1990 consultation sheet, the Veteran complained of frequent sinus problems and trouble breathing through his nose, especially at night.  In February 1990, the Veteran was examined for clearance in airborne school.  He complained of chronic seasonal rhinitis and sinus headaches.  He stated that his chronic rhinitis comes and goes.  He was found to be fit for airborne school.  In March 1990, the Veteran complained of cold and flu symptoms.  He was diagnosed with seasonal rhinitis.  In April 1990, the Veteran reported taking nasal decongestants.

Post-service treatment records reflect a diagnosis of sinusitis and rhinitis.  For example, a March 2006 record reflected a diagnosis of sinusitis.  In September 2008 the Veteran received treatment for sinusitis, and he received treatment for allergic rhinitis in December 2008.

In May 2010, the Veteran underwent a VA examination to address the nature and etiology of his nasal/sinus disorder.  The examiner noted that the Veteran had nasoseptal reconstruction roughly five years prior.  A CAT scan and physical examination of his nose and sinus areas were normal.  The examiner concluded that there was no current evidence of acute or chronic nose or sinus disease; however, the examiner noted nasal changes probably from rhinitis and medicamentosa using medication, and status-post nasoseptal reconstruction.

In an August 2010 statement, the Veteran stated that he began to experience problems with his sinuses when he was serving in Korea from June 1982 to January 1985.  He stated that he reported to sick call numerous times, and that he had trouble sleeping at night.

In the February 2011 remand, the Board found that the August 2010 examination was inadequate because the examiner failed to provide an etiology opinion regarding the Veteran's nasal/sinus disorder.  In this regard, the Board noted that the requirement that there be a current disability was satisfied when a disability is shows at the time of the claim or during the pending of the claim, even though the disability subsequently resolved.  See McClain v. Nicholson, 21 Vet. App. 319 (2007).  Furthermore, the Board noted that the examiner failed to address the question of whether the Veteran's sinus/nasal disorder noted in the Veteran's service treatment records clearly and unmistakably preexisted his second period of active duty service and, if so, whether it clearly and unmistakably was not aggravated by his second period of active duty service.  Thus, the Board remanded the claim for a new examination by an ear, nose, and throat specialist.

In November 2011, the Veteran underwent a new examination.  The Veteran was diagnosed with sinusitis, and the examiner noted that the disorder has its onset in the 1980s.  The Veteran stated that he began to have troubles shortly after basic training while stationed in Korea.  He stated that he was given a number of nasal washes and sprays at that time.  After reviewing the Veteran's claims file, the examiner stated that he could not provide the requested opinion because the Veteran's service treatment records from his first period of service were not available.

In a January 2012 addendum opinion, the November 2011 examiner once again noted the Veteran's complaints of in-service symptoms related to his sinuses during his first period of service.  The Board notes that, throughout the addendum opinion, the examiner referred to the Veteran as a "she;" however, based upon the discussion, it is clear that the examiner was referring to the Veteran and his factual history.  The examiner stated that, because the Veteran's service treatment records from his first period of service were unavailable, he would have to speculate as to whether his nasal/sinus disorder had its onset during his first period of service.  Nevertheless, the examiner opined that, based upon the Veteran's lay statements alone, the Veteran's nasal/sinus disorder was related to his military service because the he denied any nasal and sinus disorder prior to his initial period of active duty.  Next, the examiner opined that the Veteran's nasal/sinus disorder preexisted his secondary period of service as evidenced by the January 1990 notation of chronic seasonal rhinitis with sinus headaches; however with regard to whether the Veteran's nasal/sinus disorder clearly and unmistakably preexisted his secondary of service, the examiner stated that he could not say because the Veteran's service treatment records from his first period of service were not available.

In August 2012, the AOJ requested a new examination because the November 2011 examiner was not an ear, nose, and throat specialist as was request by the Board.  During the September 2012 examination, the Veteran once again stated that his nasal/sinus problems began while service in Korea during his first period of service.  Upon physical examination, the examiner noted less than 50 percent obstruction of the nasal cavity bilateral, mild erythema, and mild drying of the nasal mucosa.  With regard to the Veteran's diagnosis of allergic rhinitis, the examiner stated that it tended to be a very location-dependent disorder, and that allergens in South Carolina were different from the allergens in Korea.  The examiner also stated that, because sinusitis was not shown during the examination, he could not opine as to whether that condition was related to his military service.  With regard to whether the Veteran's current or recurrent nasal sinus disabilities were related to the signs or symptoms noted in January 1990, the examiner noted that, in a June 1988 Report of Medical History, the Veteran denied sinus problems.  Thus, the examiner concluded that his sinus problems began between 1987 and 1990.  The examiner reasoned that, since the no problems were noted on the June 1988 record, but were noted in January 1990, it would not be logical to assume that his sinusitis and allergic symptoms were caused by his military service.  With regard to whether a nasal/sinus disorder clearly and unmistakably preexisted his second period of active duty service, the examiner stated that often sinus problems were progressive and that started with fairly mild symptoms and progressed to more severe symptoms.  The examiner stated that, "[k]nowing this history of sinus disease, I cannot conclude[] with unmistakable certainty that all sinus disability pre-existed the Veteran's entering into active military service in January 1990."  With regard to whether the Veteran's preexisting disability was clearly and unmistakably not aggravated by his second period of service, the examiner stated that, without knowing what his exposures were on a tour by tour or week to week basis, it would not be possible to state with clear and unmistakably certainty that any pre-existing sinus and nasal disability was not aggravated beyond its natural progression.  In conclusion, that examiner opined that the Veteran did not appear to have problems after his initial tour ending in 1987.  Instead, the examiner found that he subsequently developed sinus problems which appeared to be fairly consistent in 1990 and beyond.

As noted above, the Veteran is presumed to have been sound upon entrance into both his first period of active duty in February 1982 and his second period of active duty in January 1990.  With regard to the Veteran's first period of service, there is absolutely nothing in the record to suggest that the Veteran suffered from a nasal/sinus disorder that both clearly and unmistakably preexisted his first period of service and was not aggravated by his first period of service.  With regard to his second period of service, again the Board finds that the evidence of record does not demonstrate that the Veteran suffered from a nasal or sinus disorder that both clearly and unmistakably preexisted his second period of service and was not aggravated by his second period of service.  In this regard, both the January 2012 and the August 2012 examiners concluded that the evidence of record was insufficient to show that a nasal or sinus disorder clearly and unmistakably preexisted and was not aggravated by the Veteran's second period of service since his service treatment records from his first period of service were not available.  Thus, as there is no documented notation at entrance as to the existence of any nasal or sinus disorder, and there is no clear and unmistakable evidence that the disorder preexisted service, the Board finds that the presumption of soundness is for application as to both periods of service.  See 38 U.S.C.A. § 1111; see also Doran v. Brown, 6 Vet. App. 283, 286 (1994).

Turning to the question of whether there is an etiological relationship between the Veteran's nasal or sinus disorder and service, the Board initially finds that the Veteran is competent to report the onset and continuity of his symptoms of nasal and sinus problems.  See Layno v. Brown, 6 Vet. App. 465 (1994) (a lay person is competent to report symptoms based on personal observation when no special knowledge or training is required).  The Veteran's report of the onset of his nasal and sinus problems during his first period of service is deemed credible as his lay statements regarding in-service and continuity of symptoms have been consistent, and there are not contradicted by any other evidence of record.  

As noted above, the January 2012 addendum opinion concluded that, based upon the Veteran's lay statements concerning the onset of his symptoms during his first period of service alone, the Veteran's nasal and sinus disorder was related to his first period of active duty service.  The August 2012 opinion concluded that because it was unclear whether a nasal or sinus disorder preexisted the Veteran's second period of service, it appeared that his sinus problems were fairly consistent in 1990 and had continued thereafter.

Although both VA opinions came to different conclusions as to when the Veteran's nasal/sinus disorder onset (his first period of service or his second period of service), the opinions nevertheless support an award of service connection on a direct basis.  Therefore, the Board finds that the evidence, at the very least, is in relative equipoise.  Accordingly, resolving all reasonable doubt in the Veteran's favor, service connection for a nasal/sinus problems is granted.   See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

III.  Earlier Effective Date

The Veteran claims entitlement to an earlier effective date for the grant of service connection for pseudofolliculitis barbae and acne keloidosis of the scalp.  In the July 2010 rating decision on appeal, service connection for pseudofolliculitis barbae and acne keloidosis of the scalp was granted, effective July 12, 2004.  Thereafter, the Veteran disagreed with the assigned effective date arguing that he had been dealing with the disability since his discharge in July 1993.  In support of his argument, the pointed to an August 2004 letter from Dr. D.G. that noted that the Veteran had been under her care since 1994 for pseudofolliculitis barbae and acne keloidosis of the scalp, and that he required repeated cortisone injections into the scalp to control the inflammatory papules.

Generally, and except as otherwise provided, the effective date of a compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. 

The provisions of 38 U.S.C.A. § 5110 refer to the date an "application" is received. The "date of receipt" means the date on which a claim, information or evidence was received by VA. 38 C.F.R. § 3.1(r).  While the term "application" is not defined in the statute, the regulations use the terms "claim" and "application" interchangeably, and they are defined broadly to include "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit."  38 C.F.R. § 3.1(p).  See also Rodriguez v. West, 189 F.3d. 1352 (Fed. Cir. 1999), cert. denied, 529 U.S. 1004   (2000).  The benefit sought must be identified, see Stewart v. Brown, 10 Vet. App. 15, 18 (1997), but need not be specific, see Servello v. Derwinski, 3 Vet. App. 196, 199 (1992).  While VA must interpret a claimant's submissions broadly, VA is not required to conjure up issues not raised by claimant.  VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed.  Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). 

Under 38 C.F.R. § 3.155(a), the Veteran or a representative of the Veteran can file an informal claim by communicating an intent to apply for one or more VA benefits.  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim.   Recent rulemaking changes regarding the submission of claims received on or after March 24, 2015 are not applicable in this case because the Veteran's claim was received prior to this date.

To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992).

The claims file shows that the RO received the Veteran's claim for service connection for a bilateral knee disorder, a sickle cell trait disorder, and a low back disorder in July 1993.  The Veteran's VA Form 21-526, Application for Compensation or Pension, makes no mention of pseudofolliculitis barbae and acne keloidosis of the scalp, or any other related disability or disorder.  In connection with his July 1993 claim, the Veteran underwent a VA examination in February 1994.  During the examination, the examiner noted extensive scarring due to healed acne and at the hairline of his beard he had some folliculitis barbae.

The Veteran's claim for an increased rating for his service-connected bilateral knee disability on July 12, 2004.  Thereafter, on August 4, 2004, the RO received the Veteran's informal claim for service connection for pseudofolliculitis barbae and acne keloidosis of the scalp.  The Veteran stated that, while in service he was given a shaving profile.  In support of his claim, the Veteran submitted a letter from Dr. D.G. which noted that the Veteran been receiving ongoing treatment for pseudofolliculitis barbae and acne keloidosis of the scalp since 1994.

The Board finds that an effective date earlier than July 12, 2004, for service connection for pseudofolliculitis barbae and acne keloidosis of the scalp is not warranted because there is nothing in the record prior to that date that suggests any form of claim for service connection.  In fact, the Board notes that the issue of entitlement to service connection for pseudofolliculitis barbae and acne keloidosis of the scalp was not raised until August 4, 2004; nevertheless, the AOJ assigned the effective date of July 12, 2004.  The Board acknowledges the February 1994 examiner's diagnoses of extensive scarring due to healed acne and, at the hairline of his beard, he had some folliculitis barbae, and the August 2004 opinion from Dr. D.G. noting that the Veteran had received treatment for pseudofolliculitis barbae and acne keloidosis of the scalp since 1994.  However, the effective date of an award of service connection is assigned not based on the date the Veteran claims the disability appeared or the date of the earliest medical evidence demonstrating the existence of such disability and a causal connection to service; rather, the effective date is assigned based on consideration of the date that the application upon which service connection was eventually awarded was received by VA.  See LaLonde v. West, 12 Vet. App. 377, 382-383 (1999).  Neither the Veteran nor his representative cite or contend that an earlier claim was submitted and received by VA.  

Where the law and not the facts are determinative of a denial in a claim for VA benefits, the claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994).  Therefore, the Veteran's claim of entitlement to an effective date prior to July 12, 2004, for the award of service connection for pseudofolliculitis barbae and acne keloidosis of the scalp is denied.

IV.  Increased Ratings

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55 (1994). 

Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise the lower rating will be assigned.  38 C.F.R.        § 4.7.  All benefit of the doubt will be resolved in the Veteran's favor.  38 C.F.R.      § 4.3.

Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, are expected in all instances.  38 C.F.R. § 4.21.

Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below.  See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence).

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities.  38 C.F.R. § 4.14.  It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

A.  Bilateral Knee Chondromalacia Patella

The Veteran contends that increased ratings are warranted for his left and right knee chondromalacia patella.  These disabilities are currently rated as 10 percent disabling under Diagnostic Code 5099-5010.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.  Unlisted disabilities requiring rating by analogy will be coded first with numbers of the most closely related body part and "99."  38 C.F.R. § 4.27 (2015).

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion.  38 C.F.R. § 4.40.

When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2014); DeLuca v. Brown, 8 Vet. App. 202 (1995).  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40.  In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system."  Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance."  Id. (quoting 38 C.F.R. § 4.40).  Thus, functional loss caused by pain must be rating at the same level as if the functional loss were caused by any of the other factors cited above.  Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.

The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.  In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability.

Diagnostic Code 5010 instructs that traumatic arthritis is to be rated as degenerative arthritis under Diagnostic Code 5003.  38 C.F.R. § 4.71a, Diagnostic Code 5010.  Degenerative arthritis is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5003, which provides three rating methods for rating degenerative arthritis.  Diagnostic Code 5003 provides that when range of motion is not limited or limited only to a noncompensable degree, a minimum rating of 10 percent is assigned for each major joint or group of minor joints affected by limitation of motion, to be combined, not added.  Limited motion must be confirmed by swelling, muscle spasm or satisfactory evidence of painful motion.  When there is no limited motion, but X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, a 10 percent disability rating is warranted; if there is evidence of occasional incapacitation exacerbations, a 20 percent disability rating is warranted.

Normal range of knee motion is 140 degrees of flexion and zero degrees of extension.  38 C.F.R. § 4.71, Plate II.

Limitation of motion of the knee is contemplated in 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261.  Diagnostic Code 5260 provides for a zero percent evaluation where flexion of the leg is only limited to 60 degrees.  For a 10 percent evaluation, flexion must be limited to 45 degrees.  For a 20 percent evaluation is warranted where flexion is limited to 30 degrees.  A 30 percent evaluation may be assigned where flexion is limited to 15 degrees. 

Diagnostic Code 5261 provides for a zero percent evaluation where extension of the leg is limited to five degrees.  A 10 percent evaluation requires extension limited to 10 degrees.  A 20 percent evaluation is warranted where extension is limited to 15 degrees.  A 30 percent evaluation may be assigned where the evidence shows extension limited to 20 degrees.  For a 40 percent evaluation, extension must be limited to 30 degrees.  And finally, where extension is limited to 45 degrees a 50 percent evaluation may be assigned. 

VA's General Counsel has also stated that separate ratings under Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 (2004). 

Additionally, 38 C.F.R. § 4.71a, Diagnostic Code 5257, provides for assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability.  A 20 percent rating is assigned when there is moderate recurrent subluxation or lateral instability, and a 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 

For knee impairment with recurrent subluxation or lateral instability, a 10 percent rating is assigned for slight disability, a 20 percent rating is assigned for moderate disability, and a 30 percent rating is assigned for severe disability.  38 C.F.R. § 4.71a, Diagnostic Code 5257.  The terms "slight," "moderate," and "severe" are not defined in the Rating Schedule.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just."  38 C.F.R. § 4.6.  The VA General Counsel  has held that a claimant who has arthritis (resulting in limited or painful motion) and instability of a knee may be rated separately under Diagnostic Codes 5003 and 5257, however, cautioning that any such separate rating must be based on additional disabling symptomatology. See VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998).

The Veteran's claim for an increased rating was received on October 26, 2012.  Pertinent evidence of record consists of VA examinations conducted in December 2012 and June 2015, and lay statements from the Veteran.

In October 2012, the Veteran stated that his bilateral knee disabilities had worsened over time, and that walking and sitting were very difficult with pain.  He stated that driving was also difficult, and that he was on pain medication for his knees.  In December 2012, the Veteran stated that bending, walking, and sleeping were now difficult due to pain, and that he had to use ice treatments at home.

In connection with his claim, the Veteran underwent a VA examination in December 2012.  The examiner confirmed the diagnosis of bilateral knee chondromalacia patella.  Imaging results confirmed evidence of traumatic arthritis.  During the examination, the Veteran stated that his bilateral knee disabilities had worsened over the years, and that they were especially stiff in the morning.  With regard to wether flare-ups impacted the functional ability of his knees, the Veteran reported trouble bending and stooping, as well as trouble driving.  He also stated that his symptoms were worse in the morning until he started moving around, and that occasionally his knees would swell, especially on the right.  

Range-of-motion testing revealed right knee flexion to 140 degrees or greater, without objective evidence of painful motion; left knee flexion to 140 degrees or greater, with objective evidence of painful motion at 140 degrees; and bilateral knee extension to zero degrees, without objective evidence of painful motion.  Following repetitive testing, the Veteran's range of motion was unchanged bilaterally.  With regard to whether there was any functional loss and/or functional impairment of the knees following repetitive-use testing, the examiner noted that the Veteran suffered from pain on movement, swelling, instability of station, and disturbance of locomotion in both knees.  Muscle strength testing in both knees was normal, joint stability testing was normal, and there was no evidence or history of recurrent patellar subluxation or dislocation.  There was no history of shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment.  Furthermore, there was no evidence of any meniscal condition.  The examiner noted that the Veteran had not undergone a total knee joint replacement for either knee.  There were no other pertinent findings related to the Veteran's knees.  With regard to whether the Veteran's knees impact his ability work, the examiner stated that the Veteran could not stoop or bending, and noted that he had problems driving.

In his June 2013 notice of disagreement, the Veteran argued that the rating criteria focused too much on range-of-motion testing, and not enough on pain, discomfort, weakness, and flare-ups.  He stated that he dealt with pain while walking, standing, or sitting on a daily basis.  He stated that, only after "cracking" his knees would he get relief.  He indicated that, because of his work as an educator, there was a lot of standing and walking around.

In his July 2014 substantive appeal, the Veteran argued that the AOJ's decision focused too much on range of motion, and that it did not consider painful walking, sitting, or standing.  He stated that, while driving, he had to extend both legs in front of him in order to ease the discomfort and pain.  He also stated that he could no longer run, but that he would walk for exercise. 

In June 2015, the Veteran underwent another VA examination.  Once again, the examiner noted the diagnosis of bilateral patellar chondromalacia.  During the examination, the Veteran stated that he suffered from ongoing bilateral knee pain that comes and goes, and that his knees would swell at times.  He stated that, as an educator, it was becoming harder to be on his feet all day.  With regard to flare-ups, the Veteran reported throbbing severe pain.  With regard to any functional loss or functional impairment following repeated use, the Veteran reiterated that it was hard to stand on his feet all day.

Range-of-motion testing revealed right knee flexion to 120 degrees, with objective evidence of painful motion, and right knee extension to zero degrees.  The examiner noted that pain itself did not contribute to any functional loss.  Furthermore, the examiner noted that there was evidence of pain with weight bearing and objective evidence of crepitus, but no evidence of localized tenderness or pain on palpation.  With regard to the left knee, range-of-motion testing revealed flexion to 120 degrees, with objective evidence of painful motion, and left knee extension to zero degrees.  The examiner noted that pain itself did not contribute to any functional loss.  Furthermore, the examiner noted that there was evidence of pain with weight bearing and objective evidence of crepitus, but no evidence of localized tenderness or pain on palpation.  Following repetitive-use testing, the Veteran's range of motion was the same, and there was no additional functional loss.  The examiner noted that the Veteran was not being examined immediately after repetitive use over time or during a flare-up; however, the examiner found that the examination results were neither consistent nor inconsistent with the Veteran's lay statements.  Furthermore, the examiner opined that pain, weakness, and fatigability would not significantly limit the Veteran's functional ability following repetitive use or during flare-ups.  With regard to any additional contributing factors of disability, the examination noted problems with instability of station, disturbance of locomotion, and interference with standing.  Muscle strength testing was normal, and there was no evidence of ankylosis.  Joint stability testing was also normal, and there was no history of recurrent subluxation.  Once again, there was no history of shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment.  Furthermore, there was no evidence of any meniscal condition.  The examiner noted that the Veteran occasionally used a brace for his knees.  Finally, with regard to whether the Veteran's bilateral knee disabilities impact his ability to work, the examiner noted that he difficulty standing for long periods.

In a July 2015 statement, the Veteran's representative argued that the Veteran's bilateral knee disabilities should be assigned 20 percent ratings each.

Based on the foregoing, the Board finds that a preponderance of the evidence demonstrates that disability ratings in excess of 10 percent for the Veteran's right and left knee chondromalacia patella are not warranted at any time pertinent to the appeal period.  

Initially, the Board notes that the Veteran has never met the criteria for a compensable rating under either Diagnostic Codes 5260 or 5261.  As noted above, the Veteran's flexion in either knee was limited to no more than 120 degrees, and his extension was limited to no more than zero degrees.

Despite failing to meet the criteria for a compensable rating, under Diagnostic Codes 5260 or 5261, the Veteran nevertheless is assigned a 10 percent rating for both knees.  Review of the initial June 1994 rating decision shows that this initial 10 percent rating was assigned because the medical evidence of record showed significant crepitus and pain with motion.  The June 2013 rating decision continued the Veteran's 10 percent rating noting that the currently assigned rating contemplated functional loss due to painful motion of the knees.  See Burton, 25 Vet. App. at 5; 38 C.F.R. § 4.59.  At no point during this time period does the evidence demonstrate that the Veteran had flexion limited to 45 degrees (the criteria for a 10 percent rating under Diagnostic Code 5260) or extension limited to 10 degrees (the criteria for a 10 percent rating under Diagnostic Code 5261).  Accordingly, there is no basis upon which to grant an evaluation in excess of 10 percent for the service-connected Veteran's right and left knee chondromalacia patella based on the diagnostic codes predicated on range of motion.

The Board has also considered whether repetitive motion and/or flare-ups resulted in additional functional loss due to symptoms such as pain, swelling, weakness, fatigue, or incoordination, that more nearly approximates the criteria for the 20 percent rating.  However, none of the Veteran's VA examinations revealed that the Veteran's painful motion resulted in additional functional loss, to include a greater loss of flexion or extension.  The Board notes that the Veteran reported that he suffered from flare-ups; however, the Veteran stated that his flare-ups caused only severe pain, and the examiner found that flare-ups did not cause any additional functional limitation.  Therefore, the Board finds that the Veteran's condition does not result in functional loss that more nearly approximates flexion limited to 30 degrees in either his right or left knees.  See DeLuca, supra; Mitchell, supra.  Therefore, the Veteran is not entitled to a rating in excess of 10 percent under Diagnostic Code 5260 for his right or left knees.

With regard to whether the Veteran is entitled to a separate rating under Diagnostic Code 5257 for recurrent subluxation or lateral instability, both the December 2012 and June 2015 VA examination reports specifically noted that there was no objective evidence of lateral instability, and the Veteran has not alleged any problems with instability.  Moreover, the Veteran has not alleged, and the objective medical evidence fails to demonstrate or suggest recurrent subluxation in either the right or left knees.  Consequently, he is not entitled to a higher rating or separate rating under Diagnostic Code 5257 for his service-connected right or left knee.

Additionally, as the evidence of record fails to demonstrate ankylosis, dislocation or removal of semilunar cartialge, impairment of the tibia or fibula, or genu recurvatum, the Veteran is not entitled to a higher or separate ratings under Diagnostic Codes 5256, 5258, 5259, 5262, or 5263, respectively.

Thus, as the evidence of record fails to establish that the Veteran's service-connected right knee or left knee disabilities warrant higher ratings, the Board finds that the Veteran is not entitled to a rating in excess of 10 percent for his service-connected left and right knee chondromalacia patella.

The Board has considered whether additional staged ratings under Hart, supra, are appropriate for the Veteran's service-connected right and left knee disabilities; however, the Board finds that his symptomatology has been stable for each disability rating currently assigned throughout the appeal period.  Therefore, assigning further staged ratings for each disability is not warranted.

B.  Pseudofolliculitis Barbae and Acne Keloidosis of the Scalp

The Veteran contends that an increased rating is warranted for his pseudofolliculitis barbae and acne keloidosis of the scalp.  This disability is currently rated as 10 percent disabling under Diagnostic Code 7813-7816.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen, and is the diagnostic code by which the disability is evaluated.  38 C.F.R. § 4.27.

Diagnostic Code 7813 directs that dermaphytosis, including tinea barbae of the beard area, should be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801-7805), or dermatitis (Diagnostic Code 7806), depending upon the predominant disability.  38 C.F.R. § 4.118.

Under Diagnostic Code 7816, a noncompensable rating will be assigned where less than 5 percent of the entire body or areas exposed are affected, and no more than topical therapy is required during the past 12 month period.  A 10 percent rating is warranted where at least 5 percent, but less than 20 percent of the entire body or the exposed areas affected; or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than six weeks during a 12-month period.  A 30 percent rating is assigned where 20 to 40 percent of the entire body or the exposed areas affected; where systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during a 12-month period.  A 60 percent rating is warranted where more than 40 percent of the entire body or the exposed areas affected; or where there is constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period.  38 C.F.R. § 4.118, Diagnostic Code 7816.  Additionally, Diagnostic Code 7816 directs that the skin disability may alternatively be rating as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801-7805) depending upon the predominant disability.

Diagnostic Code 7829 provides for a 30 percent rating for deep acne (deep inflamed nodules and pus-filled cysts) affecting 40 percent of the face and neck.  A 10 percent rating is warranted for deep acne affecting less than 40 percent of the face and neck, or deep acne other than on the face and neck.  A noncompensable rating is warranted for superficial acne (comedones, papules, pustules, superficial cysts) of any extent.  Additionally, Diagnostic Code 7829 directs that the skin disability may alternatively be rating as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801-7805) depending upon the predominant disability.

Under Diagnostic Code 7806, a noncompensable rating will be assigned where less than 5 percent of the entire body or less than 5 percent of the exposed areas are affected, and no more than topical therapy is required during the past 12 month period.  A 10 percent rating is warranted where at least 5 percent, but less than 20 percent of the entire body or the exposed areas are affected; or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than six weeks during a 12-month period.  A 30 percent rating is assigned where 20 to 40 percent of the entire body or the exposed areas affected; or where systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during a 12-month period.  A 60 percent rating is warranted where more than 40 percent of the entire body or the exposed areas affected; or where there is constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period.  38 C.F.R. § 4.118, Diagnostic Code 7806.  Additionally, Diagnostic Code 7806 directs that the skin disability may alternatively be rating as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801-7805) depending upon the predominant disability.

The criteria for rating scars under Diagnostic Codes 7800-7805 were amended effective October 23, 2008 and apply to all claims received by VA on or after October 23, 2008.  In the instant case the Veteran's claim was received in March 2010 and the revised criteria are applicable.

Under Diagnostic Code 7800 burn scars of the head, face, or neck; scars of the head, face, or neck; or other disfigurement of the head, face, or neck warrant a 10 percent evaluation when one characteristic of disfigurement is present. A 30 percent rating is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features, or; with two or three characteristics of disfigurement. A 50 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features, or; with four or five characteristics of disfigurement. A rating of 80 percent is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features, or; with six or more characteristics of disfigurement.  38 C.F.R. § 4.118, Diagnostic Code 7800.

The 8 characteristics of disfigurement for purposes of evaluation under § 4.118 are: (1) Scar 5 or more inches (13 or more centimeters) in length; (2) Scar at least one-quarter inch (0.6 centimeters) wide at the widest part; (3) Surface contour of scar elevated or depressed on palpation; (4) Scar adherent to underlying tissue; (5) Skin hypo-or hyper- pigmented in an area exceeding six square inches (39 square centimeters); (6) Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 square centimeters); (7) Underlying soft tissue missing in an area exceeding six square inches (39 square centimeters); and (8) Skin indurated and inflexible in an area exceeding six square inches (39 square centimeters).  38 C.F.R. § 4.118, Diagnostic Code 7800, Note (1).

As the Veteran's pseudofolliculitis barbae and acne keloidosis of the scalp is on his head, face, and neck, Diagnostic Codes 7801 and 7802 are not applicable as they specifically address scars other than of the head, face, or neck.  38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802 (2015).

Diagnostic Code 7804 provides that a 10 percent rating is warranted for one or two scars that are unstable or painful. A 20 percent rating is provided for three or four scars that are unstable or painful. A 30 percent rating is provided for five or more scars that are unstable or painful. Note (1) to Diagnostic Code 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) for that code provides that if one or more scars are both unstable and painful, 10 percent is added to the evaluation based on the total number of unstable or painful scars. Note (3) under that provides that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under Diagnostic Code 7804, when applicable. 38 C.F.R. § 4.118, Diagnostic Code 7804.

The Veteran's claim for an increased rating was received on October 26, 2012.  Pertinent evidence of record consists of VA examinations conducted in December 2012 and June 2015, private treatment records, and lay statements from the Veteran.

In a December 2012, the Veteran stated that he still was receiving Kenalog injections for his pseudofolliculitis barbae and acne keloidosis of the scalp, as well as using other medications.

In December 2012, the Veteran underwent a VA examination, and was diagnosed with pseudofolliculitis barbae and acne keloidosis.  The examiner stated that the acne keloidosis was on the back of the Veteran's scalp and the pseudofolliculitis barbae was on the beard area.  The examiner noted that both areas had hair obscuring the area, but that hyperpigmented spots were still visible, and there were lumps and bumps.  With regard to the treatment for his disability, the examiner noted that the Veteran did not take any systemic corticosteroids or other immunosuppressive medications for his disability, but that he took the oral medication doxycycline for six weeks or more or more, but not constant; as well as a topical medication, clobetasol foam, for six weeks or more, but not constant.  The examiner noted that there were no debilitating or non-debilitating episodes.  The examiner noted that the Veteran's pseudofolliculitis barbae and acne keloidosis covered less than five percent of the Veteran's total body, and less than five percent of the total exposed area.  We regard to the Veteran's acne, the examiner noted that it was only superficial.  There were no other pertinent physical findings, complications, signs and/or symptoms, and there was no functional effect of the Veteran's disability, including an impact on his ability to work.

With regard to the resulting scarring from the Veteran's pseudofolliculitis barbae and acne keloidosis, the examiner noted that there were no scars on his trunk or extremities, but that there were scars or disfigurement of the head, face, or neck.  The examiner noted that none of the scars of the head, face, or neck were painful or unstable, and none of the scars resulted in frequent loss of covering of the skin over the scar.  During the examination, the Veteran reported getting injections to treat the keloidosis in his scalp.  The examiner noted that there were two scars, and that the surface contour of both were elevated and depressed on palpation.  The examiner also noted that the Veteran's scars caused hyperpigmentation.  There was no distortion or asymmetry of facial features.  The examiner noted that the Veteran's pseudofolliculitis barbae and acne keloidosis did not cause any limitation of function, and there were no other pertinent physical findings, complications, conditions, signs and/or symptoms associated with the Veteran's pseudofolliculitis barbae and acne keloidosis.  The examiner also noted that the Veteran's pseudofolliculitis barbae and acne keloidosis did not impact his ability to work.

In June 2015, the Veteran underwent another VA examination.  The Veteran was diagnosed with pseudofolliculitis barbae and acne keloidosis.  The examiner noted that the Veteran did not shave due to his pseudofolliculitis barbae, and that he still received injections on the back of the neck due to lesions.  The examiner also noted that the Veteran was taking four medications for his disability.  The Veteran's treatment regimen was noted to include only topical medications on a constant or near-constant basis.  No other treatment was noted.  There were no debilitating or non-debilitating episodes.  The total area and exposed area covered by the Veteran's pseudofolliculitis barbae and acne keloidosis was less than five percent.  With regard to the Veteran's acne, the examiner noted that the Veteran suffered from deep acne.  There were no other pertinent physical findings, complications, signs and/or symptoms, and there was no functional effect of the Veteran's disability, including an impact on his ability to work.

With regard to the resulting scarring from the Veteran's pseudofolliculitis barbae and acne keloidosis, the examiner noted that there were scars or disfigurement of the head, face, or neck.  The examiner noted that the Veteran had five or more scars of the head, face, or neck that caused a deep throbbing pain.  However, none of the scars were unstable, with frequent loss of covering of skin.  The examiner indicated that the Veteran's scarring was too numerous to provide an area.  The Veteran scarring did not cause gross distortion or asymmetry of facial features or visible or palpable tissue loss.  Finally, the examiner noted that the Veteran's scarring did not impact his ability to work.  

In the February 2016 appellate brief, the Veteran's representative argued that the Veteran's pseudofolliculitis barbae and acne keloidosis covered a larger area than was reported in the VA examination report.  The representative argued that pseudofolliculitis barbae and acne keloidosis and resulting scars were painful and tender, and that they required constant treatment.

While the record reflects the Veteran's use of a number of medications to control his pseudofolliculitis barbae and acne keloidosis, it did not cover an area of 20 percent to 40 percent of the entire body or an area of 20 percent to 40 percent of the exposed area; and did not require the use of systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during any relevant twelve month period.  See December 2012 and June 2015 VA Examinations.  As a result, a higher 30 percent rating is not warranted under either Diagnostic Codes 7806 or 7816.

With regard to Diagnostic Code 7829, the December 2012 VA examiner noted that the Veteran's acne was only superficial.  While the June 2015 VA examiner noted that the Veteran suffered from deep acne, is was not shown to cover an area of 40 percent or more of the face and neck.  Thus, a higher rating is not warranted under Diagnostic Code 7829.

The Board notes that, in a June2015 rating decision, the AOJ granted service connection for tender scars of the head, face, or neck as secondary to his service-connected pseudofolliculitis barbae and acne keloidosis of the scalp, and assigned a 30 percent rating under Diagnostic 7804, effective June 1, 2015.  That assigned rating was based on the June 2015 VA examination results that showed that the Veteran suffered from five or more scars that caused a deep, throbbing pain.  The AOJ noted that, prior to that point, the Veteran's scarring was not shown to be tender or painful.

In that same June 2015 rating decision, the AOJ assigned a 10 percent rating under Diagnostic Code 7800 for facial scarring as secondary to the Veteran's service connected pseudofolliculitis barbae and acne keloidosis of the scalp based upon the December 2012 VA examination report which noted that the Veteran's pseudofolliculitis barbae and acne keloidosis caused one characteristic of disfigurement, namely surface contour of scar elevated or depressed on palpation.

Therefore, the Board finds that any further or higher ratings under Diagnostic Codes 7800 or 7804 would not be appropriate, as the Veteran's 10 percent rating under Diagnostic Code 7813-7816 contemplates the area affected by the Veteran's pseudofolliculitis barbae and acne keloidosis covered, the Veteran's 10 percent rating under Diagnostic Code 7800 contemplates the Veteran's one characteristic of disfigurement, and the Veteran's 30 percent rating under Diagnostic Code contemplates his painful and tender scarring.  Thus, any further or higher rating would constitute pyramiding, since any further rating would compensate the Veteran twice for the same symptomatology (covered area, one characteristic of disfigurement, and five or more tender and painful scars).  See Esteban, 6 Vet. App. 259, 261-262 (1994).

Based on the foregoing, the Board finds that the Veteran's pseudofolliculitis barbae and acne keloidosis does not warrant a rating higher than 10 percent at any time relevant to the appeal period.

The Board has considered whether additional staged ratings under Hart, supra, are appropriate for the Veteran's service-connected pseudofolliculitis barbae and acne keloidosis of the scalp; however, the Board finds that his symptomatology has been adequately addressed by the assigned rating throughout the appeal period.  Therefore, assigning further staged ratings for each disability is not warranted.

C.  Other Considerations

Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration.  An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable.  38 C.F.R. § 3.321(b)(1) (2015). 

In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied.  Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under 
§ 3.321 is a three-step inquiry.  First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.

Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization."  Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating.  Id. 

The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected connected bilateral knee chondromalacia patella and pseudofolliculitis barbae and acne keloidosis of the scalp with the established criteria found in the rating schedule that is pertinent to each disability.  The Board finds that the Veteran's symptomatology throughout the appeal period has been fully addressed by the rating criteria under which each disability is rated.  Thus, referral for an extra-schedular rating is not appropriate because the assigned ratings fully contemplate the nature and severity of the Veteran's service-connected connected bilateral knee chondromalacia patella or pseudofolliculitis barbae and acne keloidosis of the scalp.  Therefore, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization.  Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted.  Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996).

Further, the Board notes that under Johnson v. McDonald, 2013-7104, 2014 WL 3562218 (Fed. Cir. Aug. 6, 2014), a veteran may be awarded an extra-schedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced.  

However, in this case, after applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition at any point during the appeal.  Accordingly, this is not an exceptional circumstance in which extra-schedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions.  

As a final point, the Board notes that the United States Court of Appeals for Veterans Claims has held that a request for a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities may be a component of a claim for higher rating if expressly raised by a Veteran or reasonably raised by the record.  See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  The records show that, throughout the entire appeal period, the Veteran was employed as an educator.  As the Veteran was not unemployed due to his service-connected bilateral knee chondromalacia patella or pseudofolliculitis barbae and acne keloidosis of the scalp at any point, the Board finds that Rice is not applicable to the current appeal, and any further discussion of entitlement to a TDIU is not necessary.  Rice, supra.


ORDER

Service connection for a nasal/sinus disorder is granted.

Entitlement to an earlier effective date for the award of service connection for pseudofolliculitis barbae and acne keloidosis of the scalp is denied.

Entitlement to a rating in excess of 10 percent for service-connected right knee chondromalacia patella is denied.

Entitlement to a rating in excess of 10 percent for service-connected left knee chondromalacia patella is denied.

Entitlement to a rating in excess of 10 percent for service-connected pseudofolliculitis barbae and acne keloidosis of the scalp is denied.



______________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs