Citation Nr: 1753150 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 13-33 860A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial higher (compensable) rating for pseudofolliculitis barbae. 2. Entitlement to service connection for a respiratory disorder. 3. Entitlement to service connection for allergic rhinitis. 4. Entitlement to service connection for hepatitis C. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sara Kravitz, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1977 to January 1981. This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office in Waco, Texas. This case was also last remanded by the Board in June 2016 for additional development. There has been substantial compliance with the remand instructions. See Dyment v. West, 13 Vet. App. 141 (1999). FINDINGS OF FACT 1. The Veteran's pseudofolliculitis barbae has not affected at least 5 percent of the entire body; or at least 5 percent of exposed areas; nor have intermittent systemic therapy, such as corticosteroids/other immunosuppressive drugs, been required for a total duration of less than six weeks during the past 12-month period. 2. The weight of the competent and credible evidence of record does not show a causal link between the Veteran's respiratory disorder and service. 3. The weight of the competent and credible evidence of record does not show a causal link between the Veteran's allergic rhinitis and service. 4. The weight of the competent and credible evidence of record does not show a causal link between the Veteran's hepatitis C and service. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for the service-connected pseudofolliculitis barbae have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 3.321, 4.118, Diagnostic Code (DC) 7813 (2017). 2. The criteria for service connection for a respiratory disorder are not met. 38 U.S.C. § 1101 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria for service connection for allergic rhinitis are not met. 38 U.S.C. § 1101 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 4. The criteria for service connection for hepatitis C are not met. 38 U.S.C. § 1101 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating for Pseudofolliculitis Barbae The Veteran essentially contends that his skin disability is more disabling than contemplated by his noncompensable rating. Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. Each disability must be viewed in relation to its history, with an emphasis on the limitation of activity imposed by the disabling condition. Medical reports must be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. See 38 U.S.C.A. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7 (2017). The United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Under Diagnostic Code 7813, pseudofolliculitis barbae (tinea barbae of the beard area) is rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801-7805), or eczema/dermatitis (Diagnostic Code 7806), depending upon the predominant disability. 38 C.F.R. § 4.118 (2017). Under Diagnostic Code 7800, a 10 percent rating is warranted for burn scars of the head, face, or neck; or scars of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck - when the skin disability has one characteristic of disfigurement. A 30 percent rating is warranted with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement. A 50 percent rating is warranted with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement. An 80 percent rating is warranted with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement. Under Diagnostic Code 7801, a 10 percent rating is warranted for burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear, at least 39 sq. cm. in area but less than 77 sq. cm. Under Diagnostic Code 7802, a maximum 10 percent rating is warranted for burn scars or scars due to other causes, not of the head, face, or neck, that are superficial (not associated with soft tissue damage) and nonlinear, affecting an area or areas of 144 square inches (929 sq. cm.) or greater. Under the new criteria, Diagnostic Code 7803 no longer exists, as it was incorporated into Diagnostic Code 7804. Id. Under Diagnostic Code 7804, a 10 percent rating is warranted for one or two scars that are unstable (frequent loss of covering of the skin over the scar) or painful. A 20 percent rating is warranted for three or four scars that are unstable or painful, with a maximum 30 percent rating warranted for five or more scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. See 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (1). Scars can receive separate evaluations under Diagnostic Codes 7800, 7801, 7802, and 7805, despite also be rated under Diagnostic Code 7804. See 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (3). Under Diagnostic Code 7805, or other scars, a separate rating can also be warranted for any disabling effects not considered under Diagnostic Codes 7800-7804. 38 C.F.R. § 4.118. Under Diagnostic Code 7806, when the disorder covers less than 5 percent of the entire body or less than 5 percent of exposed areas are affected, and no more than topical therapy is required during the past 12- month period, a zero percent rating is assigned. A 10 percent rating is assigned when at least 5 percent, but less than 20 percent of the entire body is covered; or at least 5 percent, but less than 20 percent of exposed areas are affected; or intermittent systemic therapy, such as corticosteroids/other immunosuppressive drugs, are required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted for dermatitis or eczema, affecting 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas, or for dermatitis or eczema that requires systemic therapy, such as corticosteroids or other immunosuppressive drugs, for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent disability rating is assigned for dermatitis or eczema, affecting more than 40 percent of the entire body or more than 40 percent of exposed areas, or for dermatitis or eczema that requires constant or near-constant systemic therapy, such as corticosteroids or other immunosuppressive drugs, during the past 12-month period. The Veteran was given a VA examination in June 2012. The examiner noted the Veteran did not have any scarring. He was noted to have constant or near constant use of over the counter magic shaving cream, but no other treatment. The examiner did not note a visible skin condition at the time. In October 2016, the Veteran was afforded another VA examination. The examiner noted the Veteran did not have any scarring. He was noted have constant or near constant use of over the counter magic shaving cream, but no other treatment. The examiner noted faint stubble to bearded area with no pigmentary skin changes and no pustules; a single papule to left jaw line with ingrown hair and no scarring was noted. The examiner found that the exposed area affected was less than 5%, and total body area affected was less than 5%. In the instant case, the Veteran does not have any scarring for his service-connected condition, so rating him under diagnostic codes 7801-7805 is not appropriate. With regards to the evaluation under diagnostic code 7806, at no point during the appeal has the Veteran's pseudofolliculitis barbae been shown to affect at least 5 percent or his entire body or exposed area; nor has it required intermittent systemic therapy, such as corticosteroids/other immunosuppressive drugs. The Veteran noted at both examinations that he used an over the counter shave cream to treat his condition. The Board has considered the Veteran's statements with regard to the severity of his disability. The Veteran is competent to report on factual matters of which he had firsthand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). His statements have been considered in assigning the disability ratings. However, the evidence of record, including his statements, which were factored into the VA examinations, does not show that higher ratings are warranted beyond the non compensable rating. The Board finds that the weight of the evidence is against a rating a compensable rating throughout the entire appeal period. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Respiratory Disorder During his October 2016 VA examination, the Veteran reported having shortness of breath with exertion for the past 10 years. He stated that he had an occasional nonproductive cough and admitted to a tobacco history of over forty years. He indicates that he stopped doing any routine exercise twenty years ago, but is able to do part time work for a moving company and is able to perform yardwork. The Veteran noted that he suffered a gunshot wound to the chest in the 1990s (post service) for which he had surgery on the left lung. The examiner noted that service treatment records document evaluation and treatment for upper respiratory infection/viral syndromes three times from 1978-1980. The chest x-ray was reportedly normal and no respiratory complaints or conditions were noted on the separation examination dated November 1980. The examiner noted VAMC treatment records are negative for documented complaints of breathing problems and no diagnosis or treatment for a respiratory condition is of record. A screening chest CT from May 2016 notated a right upper lobe nodule. The examiner noted the recently discovered single pulmonary nodule by CT imaging is nonspecific and unlikely to create any significant impairment in lung function. The examiner further opined that the upper respiratory infections (involving the paranasal sinuses, nasal passages, and oropharyngeal tissues) noted in service, by definition, exclude intrathoracic pathology and would be unrelated to lower respiratory disease, such as a pulmonary nodule in this case. Therefore the examiner noted it was less likely than not that the Veteran's pulmonary nodule was incurred in or caused by his military service. A January 2017 addendum noted spirometry does not reveal evidence of obstructive or restrictive disease and diffusion capacity for carbon monoxide is normal and that based on the evidence, the examiner opined that Veteran does not have a diagnosis of a respiratory disorder that was incurred in or caused by his military service, including the upper respiratory infections during service. Here, with respect to Hickson element (1), a current disability, the VA examiner confirmed that the Veteran has lung nodule. Affording the benefit of the doubt, Hickson element (1) is accordingly met for the claim. With regard to Hickson element (2), in-service incurrence of disease or injury, service treatment records show that the Veteran suffered respiratory infections in service. Hickson element (2) is therefore met. Turning to the Hickson element (3), nexus, the October 2016 VA examiner opined that the Veteran's nodule was a lower respiratory disease that would be unrelated to any upper respiratory infections in service. To the extent that the Veteran himself, or his representative contend that a medical relationship exists between his current nodule and service, the Board acknowledges that lay persons are competent to testify as to observations. Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). In the instant case, the Board finds the question regarding the potential relationship between the Veteran's lung nodule and any instance of his military service, to be complex in nature such that specialized medical evidence of nexus is required. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Veteran's claims that his current disorder is etiologically related to service are outweighed by the competent and probative medical opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). As noted above, the October 2016 examination is considered probative and carries significant weight as it is definitive, based upon a complete review of the Veteran's entire claims file, evaluation and interview of the Veteran, and the examiner provided a detailed rationale for the conclusion reached, including the opinion that the Veteran's nodule was a lower respiratory disease that would be unrelated to any upper respiratory infections in service. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Veteran has submitted no competent medical nexus evidence contrary to the opinion cited above. Furthermore, the Veteran has been accorded ample opportunity to furnish medical and other evidence in support of his claim; he has not done so. See 38 U.S.C.A § 5107 (a) (2012) (noting it is a claimant's responsibility to support a claim for VA benefits). In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the weight of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107 (b) (2012). Allergic Rhinitis The Veteran was afforded a VA examination in October 2016. The Veteran reported having nasal congestion, rhinorrhea, frontal headaches, and sneezing intermittently dating back to his military service. He stated the symptoms occur for up to a week at a time on a once monthly basis on average. He denied any previous allergy testing. The examiner noted that service treatment records are negative for evaluation, treatment, or diagnosis of allergic rhinitis. The examiner noted treatment for upper respiratory infection on three occasions in service without documented residuals. The examiner noted the separation examination was negative for allergy complaints or symptoms. The examiner noted that review of the electronic file did not support a diagnosis of allergic rhinitis during active duty service. The upper respiratory infections that were documented in service were transitory in nature and resolved without any documented residuals. Furthermore, the examiner opined that the relatively infrequent nature of the infections suffered by the Veteran in service do not lend themselves to the possibility of an underlying allergic rhinitis that may have been contributory to the symptoms at the time. The examiner found that it is therefore less likely than not that this Veteran's allergic rhinitis was incurred in or caused by his military service. Here, with respect to Hickson element (1), a current disability, the VA examiner confirmed that the Veteran allergic rhinitis. Hickson element (1) is accordingly met for the claim. With regard to Hickson element (2), in-service incurrence of disease or injury, service treatment records show that the Veteran suffered respiratory infections in service. Hickson element (2) is therefore met. Turning to the Hickson element (3), nexus, the October 2016 VA examiner opined that the Veteran's current allergic rhinitis was not related to service because there was no documented allergic rhinitis in service and allergies were not the cause nor did they contribute to his upper respiratory infections in service. To the extent that the Veteran himself, or his representative contend that a medical relationship exists between his allergic rhinitis and service, the Board acknowledges that lay persons are competent to testify as to observations that he had nasal congestion, rhinorrhea, frontal headaches, and sneezing in service. Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). In the instant case, the Board finds the question regarding the potential relationship between the Veteran's allergic rhinitis and any instance of his military service, to be complex in nature such that specialized medical evidence of nexus is required. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Veteran's claims that his current disorder is etiologically related to service are outweighed by the competent and probative medical opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). As noted above, the October 2016 examination is considered probative and carries significant weight as it is definitive, based upon a complete review of the Veteran's entire claims file, evaluation and interview of the Veteran, and the examiner provided a detailed rationale for the conclusion reached, including the opinion that the Veteran suffered symptoms from upper repository infections in service that were not caused by allergic rhinitis and were transitory in nature with no residuals. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Veteran has submitted no competent medical nexus evidence contrary to the opinion cited above. Furthermore, the Veteran has been accorded ample opportunity to furnish medical and other evidence in support of his claim; he has not done so. See 38 U.S.C.A § 5107(a) (2012) (noting it is a claimant's responsibility to support a claim for VA benefits). In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the weight of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107 (b) (2012). Hepatitis C During a VA examination in October 2016, the Veteran reported being diagnosed with hepatitis C by routine lab testing on his initial visit to the VA several years ago. He reported having received blood transfusions in 1989-1990 due to a gunshot wound to the chest which required removal of part of his left lung. He stated that this gunshot injury occurred after his separation from service by several years, and he further noted that he was told at one point that he may have obtained his hepatitis infection from the blood transfusion he received at that time. The Veteran also admitted to use of cocaine and intervenous heroin starting in the 1970-1980s; and that he served time in prison from1989-1991. The examiner also noted that VA medical center (VAMC) treatment records document the diagnosis of hepatitis in 2005 and service treatment records were negative for any liver conditions during active duty. The examiner opined that it was less likely than not that the Veteran's hepatitis C was incurred in service, noting that the Veteran's major risk factors for infection with the hepatitis C virus were related to his blood transfusion prior to 1992 and his use of intravenous and intranasal drugs which spanned a period of thirty years prior to, during, and after his four years of active duty service. The examiner opined that given that the Veteran's time in service represents a small minority of the time for his potential exposure to the virus, and in light of the significant risk of hepatitis transmission from blood transfusions prior to 1992, that in-service exposure to the hepatitis C virus in the absence of confirmatory lab testing during that time would be purely speculative. With respect to Hickson element (2), an in-service event or injury, service treatment records are completely negative for any findings or complaints of complaints of hepatitis C or any liver conditions. Indeed, the Veteran did not indicate that he had hepatis C during service or even that he experienced symptoms thereof. While the Veteran is competent to report events he experienced in service, he has not stated what event in service he believes lead to his hepatitic C. See e.g., Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When the Veteran submitted his claim for service connection, he did not state how he attributed his hepatitis to service. Furthermore, no medical records link his hepatitis C to any incident in service. The October 2016 examination is considered probative and carries significant weight as it is definitive, based upon a complete review of the Veteran's entire claims file, evaluation and interview of the Veteran, and the examiner provided a detailed rationale for the conclusion reached, including the opinion that the Veteran's hepatitis C was less likely than not due to service because it was more likely due to his other hepatitic C risk factors including a blood transfusion, and years of intravenous and intranasal drug use. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Veteran has submitted no competent medical nexus evidence contrary to the opinion cited above. Furthermore, the Veteran has been accorded ample opportunity to furnish medical and other evidence in support of his claim; he has not done so. See 38 U.S.C.A. § 5107(a) (2012) (noting it is a claimant's responsibility to support a claim for VA benefits). Therefore, Hickson elements (2) and (3) are not met; and service connection cannot be granted on a direct basis. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the weight of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107 (b) (2012). ORDER Entitlement to an initial compensable rating for pseudofolliculitis barbae is denied. Entitlement to service connection for a respiratory disorder is denied. Entitlement to service connection for allergic rhinitis is denied. Entitlement to service connection for hepatitis C is denied. ____________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs