Citation Nr: 1639284 Decision Date: 09/30/16 Archive Date: 10/13/16 DOCKET NO. 14-15 045 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected PTSD. 2. Entitlement to a rating in excess of 10 percent for service-connected pes planus. 3. Entitlement to an initial compensable rating for pseudofolliculitis barbae (PFB). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Biggins, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1989 to January 1993. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Houston, Texas, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a March 2016 Board videoconference hearing and a transcript of this hearing is of record. The issues of entitlement to service connection for sleep apnea and increased rating for service-connected pes planus are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Pseudofolliculitis barbae is manifested on less than one percent of the entire body and less than one percent of exposed areas affected; systemic therapy was not required during any relevant 12-month period; and it is not productive of any characteristic of disfigurement of the head, face, or neck. CONCLUSION OF LAW The criteria for an initial compensable disability rating for pseudofolliculitis barbae have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.118, Diagnostic Codes (Code) 7800, 7806 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Board notes the Veteran's claims for entitlement to service connection for sleep apnea and entitlement to an increased rating for pes planus are being remanded for VA treatment records. The Veteran stated in his June 2011 VA examination that he had not received treatment over the past year for his PFB. The Board notes in his November 2012 VA examination that Veteran reported he was using a cleocin cream for under six weeks. Cleocin cream must be prescribed by a Doctor. The Veteran's virtual VA claims file includes a VA medical treatment records search for the period of January 2012 to January 2013, which showed the Veteran had not received VA treatment. Additionally, the Veteran reported in his March 2016 Board videoconference hearing that he only receives treatment from the VA and no other outside Doctors. The Veteran also reported that the only treatment he receives for PFB is a cream he gets from his local drug store. See March 2016 Board videoconference hearing. Thus, while the Veteran reported using a cream requiring a prescription a VA treatment records search of that time period provided negative results and since that time period the Veteran has not reported treatment for PFB. Therefore, any VA treatment records obtained on remand would not contain any relevant information regarding his PFB as he is not receiving treatment for that disability. Additionally, the Board notes that social security administration (SSA) records are being sought on remand. However, the Veteran noted at his March 2016 Board videoconference hearing that he stopped working due to his feet, ankles, and posttraumatic stress disorder (PTSD). Thus, if the Veteran is seeking SSA benefits as a result of his unemployability due to his feet, ankles, and PTSD they likely do not contain records relevant to the Veteran's PFB. Therefore, the Veteran is not prejudiced by continuing with the adjudication of his claim for entitlement to an initial compensable rating for PFB without the outstanding VA treatment and SSA records. Thus, with respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2 ; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 ; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 . See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). PFB is not specifically listed in the current VA rating schedule contained in 38 C.F.R. Part 4. Unlisted conditions are rated under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2012). In this case, the RO rated PFB as noncompensable under Diagnostic Code 7800, pertaining to burn scars, scars due to other causes, or disfigurement of the head, face, or neck. As a preliminary matter, the Board finds that rating the Veteran's PFB under the criteria pertaining to scars or disfigurement of the head, face, or neck is not appropriate. The record is entirely negative for medical evidence of scarring related to the Veteran's disabilities, and the Veteran has never reported scarring due to the service-connected conditions. Similarly, there is no medical or lay evidence of disfigurement related to the service-connected skin conditions. In fact, both the June 2011 and November 2012 VA examiners found that the Veteran had no scarring or disfigurement of the head, face, or neck. The Board notes the June 2011 VA examiner noted hyperpigmentation and abnormal texture of less than six square inches. Hyperpigmentation and abnormal texture of more than six square inches are characteristic of disfigurement under Code 7800. Thus, because the June 2011 VA examiner noted the hyperpigmentation and abnormal texture to be less than six square inches these characteristics are not considered to cause disfigurement. Thus, it is clear that disfigurement or scarring are not the predominant disability resulting from the Veteran's PFB and the Board will rate the condition under the Diagnostic Code 7806 and the criteria pertaining to dermatitis. Diagnostic Code 7806 provides that dermatitis or eczema that involves less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy is required during the past 12-month period, is rated noncompensable (0 percent) disabling. Dermatitis or eczema that involves at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period, is rated 10 percent disabling. Dermatitis or eczema that involves 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period, is rated 30 percent disabling. Dermatitis or eczema that involves more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period, is rated 60 percent disabling. 38 C.F.R. § 4.118. III. Pseudofolliculitis Barbae The Veteran was awarded service connection for PFB which was rated as noncompensable effective December 23, 2010 under Code 7800. However, as noted above the Board will consider whether the Veteran is entitled to a compensable rating under code 7806. The Veteran has received two VA examinations in connection with his claim for a compensable rating for PFB. The first examination occurred in June 2011. The Veteran reported the PFB is present on his chin and upper neck. The Veteran reported symptoms of itching and crusting. The Veteran reported he experienced four PFB attacks over the last year and that the attacks can occur as often as four times a month lasting a week. The Veteran reported he has not undergone any treatment over the past 12 months. The physical examination of the Veteran did not show acne, chloracne, scarring alopecia, alopecia areata, or hyperhidrosis. The examiner concluded that the Veteran had PFB with the characteristics of "hyperpigmentation of less than six square inches and abnormal texture of less than six square inches. There is no ulceration, exfoliation, crusting, disfigurement, tissue loss, induration, inflexibility hypopigmentation and limitation of motion." The examiner noted the Veteran's skin lesions covered less than one percent of the exposed area and that the skin lesion coverage relative to the whole body was less than one percent. The examiner also noted the Veteran's skin lesions were not associated with systemic disease and did not manifest in connection with a nervous condition. The Veteran was provided with an additional examination in November 2012. The examiner diagnosed the Veteran with folliculitis. The Veteran reported in the past 12 months his treatment did not include the use of systemic corticosteroids or other immunopressive medications, but only cleocin lotion for less than six weeks. The examiner noted that the Veteran's skin folliculitis did not cause scarring or disfigurement of the head face and neck. The Veteran was afforded a March 2016 videoconference hearing. The Veteran reported his PFB was present on his upper neck and beard area. The Veteran reported it was painful to shave and that his PFB would sometimes bleed, puss, and cause his neck and face to be tender. The Veteran indicated he grew a beard in order to hide the PFB. Review of the evidence of record clearly establishes that the Veteran's PFB most nearly approximates the criteria associated with the currently assigned noncompensable rating. The June 2011 VA examiner found that the disability involved less than one percent of the exposed area affected and less than one percent of the entire body. The only manifestations of the disability were crusting, bleeding, itching, hyperpigmentation of less than six square inches, and abnormal texture of less than six square inches. The Veteran reported in his March 2016 Board videoconference hearing that he was unable to shave his face due to PFB and was forced to maintain a beard; however, both VA examiners concluded that the Veteran had no functional impairment either in his occupation or daily activities due to PFB. As the Veteran's disability does not require any intermittent systemic therapy and affects less than one percent of the exposed area affected and the entire body, a compensable rating is not warranted under Diagnostic Code 7806. IV. Extraschedular The Board further finds that referral for extraschedular consideration is not warranted. Given that this a rating by analogy, the Veteran would not be expected to have all the symptoms stated in a particular diagnostic code. The discussion above reflects that the Veteran's disability results in crusting, bleeding, itching and hyperpigmentation affecting less than six square inches. The rating criteria for dermatitis contemplates size, location and type of treatment. Even if the rating criteria were inadequate, there is no indication that the disability results in any functional impairment and there is no marked interference with employment. Thus, further consideration of referral for an extraschedular consideration is not required. See Thun v. Peake, 22 Vet. App. 111 (2008). Finally, the issue of whether referral for extraschedular consideration is warranted for the Veteran's disabilities on a collective basis has not been argued or reasonably raised by the record. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014); Yancy v. McDonald, 27 Vet. App. 484 (2016). Entitlement to a total disability rating due to individual employability resulting from service-connected disability (TDIU) is also an element of all claims for a higher initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). A claim for TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106 (2009). The Veteran reported he stopped working in 2014 due to his feet, ankles, and PTSD. In May 2015 the Veteran was awarded entitlement to TDIU effective July 31, 2014. The Veteran does not allege, and the record does not show, that the Veteran had stopped working because of the service-connected pseudofolliculitis barbae or that he stopped working prior to July 2014. Further discussion of TDIU is unnecessary. ORDER Entitlement to an initial compensable rating pseudofolliculitis barbae is denied. REMAND The Veteran is seeking service connection for sleep apnea. The Veteran has not yet been provided with a VA examination to determine if there is a nexus between his currently diagnosed sleep apnea and his active service. The Veteran has submitted buddy statements providing firsthand accounts of his loud snoring during his active service, evidence of a current diagnosis of sleep apnea, and a lay statement suggestive of a nexus between his active service and his currently diagnosed sleep apnea. The Veteran has also provided lay statements asserting a nexus between his sleep apnea and service-connected PTSD. Therefore, the claim must be remanded to obtain a VA examination and opinion. See 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, the Board notes the Veteran testified at his March 2016 videoconference Board hearing that he had recently been sent by the VA to have a sleep study performed. However, this sleep study or any of the Veteran's VA treatment records have been associated with the Veteran's claims file. Therefore, the claim must be remanded in order to obtain any and all outstanding VA treatment records to specifically include the Veteran's most recent sleep study. The Veteran is seeking a rating in excess of 10 percent for his service-connected pes planus under 38 C.F.R. § 4.71a, Diagnostic Code (Code) 5276. Pursuant to Code 5276, for a bilateral disability, a 10 percent rating is assigned for moderate symptoms of pes planus, to include weight-bearing line over or medial to the great toe, inward bowing of the tendo achilles, and pain on manipulation and use of the feet. A 30 percent rating is assigned for severe bilateral pes planus and requires objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated an indication of swelling on use, and characteristic callosities. The Veteran's most recent VA examination in relation to his feet occurred in July 2013. This disability benefits questionnaire (DBQ) examination did not directly address the rating criteria of objective evidence of marked deformity such as pronation and abduction or characteristic callosities. VA has since updated the DBQ for feet to specifically include a section entitled Flatfoot (Pes Planus), which was not included in the Veteran's July 2013 examination. Thus, the Veteran's claim must be remanded in order to obtain a new DBQ which specifically addresses all of the rating criteria in Code 5276. Additionally, the Veteran testified at his March 2016 Board videoconference hearing that the VA gives him ibprophen to treat his pes planus. However, the Veteran's claims file does not contain any VA treatment records. Thus, the claim must be remanded in order to obtain any and all outstanding VA treatment records. The Veteran also testified at his March 2016 Board videoconference hearing that he had stopped working in 2014 due to his feet, ankles, and PTSD, and that he had applied for SSA benefits. The Veteran's claims file does not contain any SSA records. Therefore, his claim must be remanded in order to obtain any outstanding SSA records as they could contain information relevant to his claim of entitlement to an increased rating for pes planus. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain and associate with the claims file any and all outstanding VA treatment records to specifically include the Veteran's most recent sleep study. 2. Obtain the names and addresses of all medical care providers who treated the Veteran for his pes planus or sleep apnea since service. After securing the necessary release, take all appropriate action to obtain these records. Inform the Veteran and provide him with the chance to submit additional records. 3. Secure for the record from SSA copies of any determination on the Veteran's claim for SSA benefits (and all medical records considered in connection with such claim). 4. After completion of the above schedule the Veteran for an appropriate VA examination to determine the nature and likely etiology of his sleep apnea. The entire record must be reviewed by the examiner in conjunction with the examination. Based on a review of the record, and examination of the Veteran, the examiner should provide opinions that respond to the following: (a) Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's sleep apnea is etiologically related to his active service? (b) Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's sleep apnea was caused by his service-connected PTSD? (c) Is it at least as likely as not that the Veteran's service-connected PTSD aggravated his sleep apnea? The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of sleep apnea present (i.e., a baseline) before the onset of the aggravation. The examiner should provide a thorough rationale for all opinions expressed. 5. After completion of steps one and two schedule the Veteran for an appropriate VA examination to determine the severity of his service-connected pes planus. Copies of all pertinent records should be forwarded to the examiner for review. All indicated testing should be carried out and the results recited in the examination report. The examiner is requested to delineate all symptomatology associated with, and the current severity of the Veteran's pes planus. The appropriate Disability Benefits Questionnaire (DBQs) should be filled out for this purpose, if possible. 6. The RO should then re-adjudicate the claim on appeal. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative an opportunity to respond. The case should then be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This 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). ______________________________________________ M.E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs