Citation Nr: 1636043 Decision Date: 09/15/16 Archive Date: 09/27/16 DOCKET NO. 13-09 028A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for pseudofolliculitis barbae (PFB). 2. Entitlement an increased rating for posttraumatic stress disorder (PTSD), currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Jan Dils, Attorney WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran had active service from October 1969 to August 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of the Winston-Salem, North Carolina, Department of Veterans Affairs (VA) Regional Office (RO), which denied the issues on appeal. The Veteran and his spouse testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in March 2016. A transcript of that hearing is of record and associated with the file. The issue of entitlement to an increased rating for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if additional action is required on his part. FINDING OF FACT The competent and credible evidence fails to establish PFB at any time during the appeal period. CONCLUSION OF LAW PFB was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Assist and Notify As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. 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). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The VCAA duty to notify was satisfied by way of an October 2010 letter sent to the Veteran. The letter fully addressed all notice elements in this matter. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The RO also provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The RO effectively satisfied the notice requirements with respect to the issue on appeal decided herein. Under these circumstances, the Board finds that adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Next, VA has a duty to assist an appellant in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records, private treatment records, and pertinent VA treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). The RO associated the Veteran's service treatment records, and VA treatment records with the claims file. No outstanding evidence has been identified. The Veteran underwent a VA examination in October 2010 in connection with his claim for service connection for PFB. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The examination was adequate, as it was predicated on a full reading of the Veteran's medical records in the claims file. All of the pertinent evidence of record was considered, to include the statements of the Veteran, and the examiner found that there was no PFB. The Veteran testified at a Travel Board hearing in March 2016. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims held that 38 C.F.R. 3.103(c)(2) requires that the RO Decision Review Officer or Veteran's Law Judge (VLJ) who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the undersigned VLJ identified the issue on appeal. The VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Therefore, not only was the issue "explained in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and the Board can adjudicate the claim based on the current record. In view of the foregoing, the Board finds no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection The Veteran asserts that service connection is warranted for PFB as a result of active service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014). Further, service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113 (b) (West 2014); 38 C.F.R. § 3.303 (d) (2015). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (2015). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service treatment records show the Veteran was seen in August 1975 complaining of facial irritation secondary to shaving. In November 1975, he was evaluated for shaving, complained of in August 1975. He followed prescribed methods of shaving without relief. He was prescribed a refill for hydrocortisone for use with shaving. The diagnosis was controlled PFB. In March 1976, he was seen for mild PFB. He was placed on a 30 day profile, with no shaving of the beard in excess of 1/4 inch in length. In August 1976, he was again diagnosed with mild PFB, and he was given a 15 day profile. He was given the same instructions provided for treatment as he received in August 1975, including hydrocortisone. At separation from service, clinical evaluation of the skin, specifically regarding PFB, was not shown. In October 2010, the Veteran underwent a VA examination. He stated that he had razor bumps with shaving in service. He was placed on a shaving profile. At the time of the VA examination, he did not shave any longer, using clippers all the time. He stated that he did not have any skin disease in the past 12 months. Examination of the face showed the skin on the face was smooth with short full beard and mustache. The diagnosis was no PFB found on the examination and resolved due to the use of clippers. There was no residual. The examiner stated that there was no PFB found. The rationale for this finding was that the Veteran had PFB in service and was placed on a shaving profile. He had no continuity of care for 43 years. He had no problems on the day of the examination. He denied shaving any longer and indicated that the problem was resolved by clipping his beard. The Veteran testified at a Travel Board hearing in March 2016. He testified that he had a shaving problem in service. He was provided a profile during service. He did not have a shaving problem prior to service. The Veteran stated that he was shaving every day in service and that this was problematic for him. He also testified that if he had to shave every day he could not wear a respirator which could become a problem for him since he works in a feed mill and it gives off gas and could interfere with his job. Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C.A. §§ 1110, 1131 (West 2014); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). "In the absence of proof of a present disability there can be no valid claim." See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board notes the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, and that a claimant may be granted service connection even though the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, however, the Veteran had PFB during service, and after discharge, he no longer had the disorder because he did not shave anymore and the disorder resolved without residual disability. There is no medical evidence of PFB at any time during the period under appellate review. The evidence of record has shown that the Veteran has not had PFB at any time during the appeals period or since service. Absent the appellant's personal statements, there is no evidence that he currently suffers from PFB. The Board notes that the United States Court of Appeals for the Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). The Veteran is competent to describe shaving bumps, and he is also competent to state that it is PFB which he has been diagnosed with in the past and which was shown on more than one occasion in service. However, he has noted, and the VA examiner has stated, that he no longer has the disorder, as no PFB has been shown within 43 years and it has resolved without residual disability. Again, there is not a scintilla of evidence to support the diagnosis of PFB during the appellate period. The Veteran's unsubstantiated statements regarding his claim that he has PFB are found to lack competency. Although the Veteran states that the PFB he had in service would return if he started shaving again, what is of importance is that he has not shown any evidence of the disorder presently or within the past 43 years. Thus, since the evidence does not show that he presently has PFB, there is no basis upon which to grant service connection. Service connection for PFB is not warranted. ORDER Service connection for PFB is denied. REMAND Further development is necessary for the claim of an increased rating in excess of 30 percent for PTSD. During the March 2016 Travel Board hearing, the Veteran stated he was treated for his PTSD on a VA outpatient treatment basis since 2010. He goes to PTSD groups two times a week and to the Vet Center in Charlotte, North Carolina. He stated he sees a psychiatrist every 3 months at the VAMC Salisbury, North Carolina. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The AOJ should attempt to obtain and associate with the claims file all outstanding VA records, to include his outpatient treatment records, his Vet Center records, and his group treatment records. Also, the Veteran testified that he had panic attacks 1-2 times a week and he had not expressed these attacks in the past. Thus, he is claiming that his PTSD disability has worsened. A veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Since the Veteran claims worsening of his PTSD, and he has not had a VA examination since October 2010, VA's duty to assist requires a "thorough and contemporaneous" medical examination. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any new medical evidence, from VA or otherwise, (to include VA outpatient treatment psychiatric records, weekly or biweekly psychiatric treatment records, and Vet Center group therapy records) that may have come into existence since the time the claims file was last updated by the AOJ. Associate these records with the claims folder. Any negative development should be documented in the claims file. 2. Following completion of the above, schedule an appropriate VA examination to determine the current severity of the Veteran's service-connected PTSD. The claims file must be made available to the examiner for review of the case, and the examination report should include discussion of the Veteran's documented mental health history and lay statements. All indicated tests and studies should be performed, and the examiner should review the results of testing, if any, prior to completing the report. The examiner must elicit from the Veteran and record for clinical purposes a full work and educational history. 3. After completion of the above actions, the claim for an increased rating for PTSD should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his attorney. After they have had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review, if in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs