Citation Nr: 1800594 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-10 933 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea. 2. Entitlement to an initial rating in excess of 10 percent for a left knee disability. 3. Entitlement to an initial compensable rating prior to November 10, 2016, and to a rating in excess of 30 percent beginning November 10, 2016, for pseudofolliculitis barbae (PFB). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Spigelman, Associate Counsel INTRODUCTION The Veteran had active naval service from September 1991 to September 2011. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In a November 2016 rating decision, the Veteran was assigned a 30 percent rating for his PFB, effective November 10, 2016. That does not constitute a complete grant of the benefit sought on appeal. However, the Board has limited its consideration accordingly. In his May 2014 substantive appeal, the Veteran requested a videoconference hearing before a member of the Board. The Veteran was scheduled for his requested hearing in July 2017. However, the Veteran failed to report for his scheduled hearing without explanation. Therefore, the Veteran's hearing request is deemed to have been withdrawn. The issues of entitlement to service connection for obstructive sleep apnea and entitlement to a rating in excess of 10 percent for a left knee disability are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to November 10, 2016, the Veteran's PFB was present on less than 5 percent of the exposed areas affected or less than 5 percent of the entire body, and required no more than topical therapy during the past 12 month period. 2. Beginning November 10, 2016, the Veteran's PFB was present on 25 percent of the exposed areas affected. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for PFB prior to November 10, 2016 have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.20, 4.118, Diagnostic Codes 7806, 7813 (2017). 2. The criteria for a rating in excess of 30 percent for PFB beginning November 10, 2016 have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.20, 4.118, Diagnostic Codes 7806, 7813 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has asserted that he should have higher ratings for his PFB as his symptoms are worse than those contemplated by the currently assigned ratings. At a May 2011 VA examination, the Veteran reported that he first experienced symptoms of PFB in 1993. The Veteran explained that when he initially joined the Navy, he was required to shave with a single-edged razor that caused red tender bumps on his face and neck. The Veteran was prescribed a cream; however, his rash did not improve. The Veteran said that he received a waiver so that he did not have to shave so close to his skin. Upon examination, the Veteran was found to have a few scattered papules on his chin and neck. The examiner diagnosed folliculitis and found that 3 percent of the exposed areas were affected, and less than 3 percent of the Veteran's total body was affected. At a November 2016 VA examination, the Veteran reported that he first experienced symptoms of PFB in 1992. The examiner noted that there was no scarring or disfigurement of the Veteran's head, face, or neck as a result of his PFB. The Veteran denied benign or malignant skin neoplasms (including malignant melanoma) and there were no systemic manifestations of the Veteran's PFB noted. The Veteran denied being treated with oral or topical medications in the past 12 months for his PFB. Upon examination, the examiner confirmed the diagnosis of PFB. The examiner noted that the Veteran had PFB located on his face and neck, representing 25 percent of the exposed areas affected and less than 5 percent of the total body surface area. The examiner noted that the Veteran's PFB was active, but noted that PFB did not impact the Veteran's ability to work. The Board finds that the Veteran is not entitled to a compensable rating prior to November 10, 2016, for PFB. In this regard, the Board notes that the May 2011 VA examiner did not find PFB present on 5 percent or more of either the exposed areas affected, or the Veteran's entire body. In fact, it was specifically noted that only 3 percent of the exposed areas were affected and less than 3 percent of the Veteran's total body was affected. Further, there was no indication from the record that the Veteran has received any sort of treatment for his PFB, let alone corticosteroids or other immunosuppressive drugs. Therefore, the Board finds that a compensable rating for PFB prior to November 10, 2016, is not warranted. 38 C.F.R. § 4.118, Diagnostic Codes 7806, 7813 (2017). The Board finds that the Veteran is not entitled to a rating in excess of 30 percent beginning November 10, 2016, for PFB. In this regard, the Board notes that the November 2016 VA examiner did not find PFB present on more than 40 percent of either the exposed areas affected, or the Veteran's entire body. In fact, the VA examiner found that only 25 percent of exposed areas were affected, and less than 5 percent of the Veteran's entire body was affected. Additionally, there is no indication from the record that the Veteran has been prescribed any treatment for his PFB, let alone corticosteroids or other immunosuppressive drugs. Therefore, the Board finds that a rating in excess of 30 percent for PFB beginning November 10, 2016, is not warranted. 38 C.F.R. § 4.118, Diagnostic Codes 7806, 7813 (2017). ORDER Entitlement to an initial compensable rating prior to November 10, 2016, and to a rating in excess of 30 percent beginning November 10, 2016, for PFB is denied. REMAND The Board finds that additional development is required before the remaining claims on appeal are decided. With regard to the Veteran's obstructive sleep apnea, a review of the record shows that the Veteran was afforded a VA examination in May 2011. The Veteran was not diagnosed with obstructive sleep apnea or any other sleep disorder at that time. Further review of the record reveals in August 2013, the Veteran was afforded a sleep study, at which time, he was diagnosed with sleep apnea. In light of the Veteran's current diagnosis of obstructive sleep apnea, the Veteran should be afforded a new VA examination to determine the nature and etiology of any currently present sleep apnea. With regard to the Veteran's left knee disability, a review of the record shows that the Veteran was afforded a VA examination of his left knee in November 2016 and March 2017. The Board notes that VA examinations for musculoskeletal disabilities must include joint testing for pain on both active and passive motion, in weight-bearing and non weight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016); 38 C.F.R. § 4.59 (2017). The Board has reviewed the November 2016 and March 2017 VA examination reports and concludes that the findings do not meet the requirements of 38 C.F.R. § 4.59 pursuant to Correia. Specifically, the examination of the left knee does not reflect joint testing for pain on passive motion or in non weight-bearing. Therefore, the Board finds that further examination is necessary. Additionally, current treatment records should be identified and obtained prior to a final decision in this appeal. Accordingly, the case is REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of any currently present obstructive sleep apnea. The claims file must be made available to, and reviewed in its entirety by the examiner. Any indicated studies should be performed. Based on the examination results and review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any currently present sleep apnea had its onset during the Veteran's active service or is otherwise etiologically related to such service. In forming the opinion, the examiner should consider the Veteran's reports of the onset and continuity of his symptoms. The rationale for all opinions expressed must be provided. 3. Then, schedule the Veteran for a VA examination to determine the current level of severity of all impairment resulting from his service-connected left knee disability. The claims file must be made available to and reviewed by the examiner. All indicated tests and studies must be performed. The examiner should provide all information required for rating purposes, to specifically include range of motion in active motion, passive motion, weight-bearing, and non weight-bearing, for both the joint in question and the paired joint. If the examiner is unable to conduct the required testing or concludes that required testing is not necessary in this case, the examiner should clearly explain why that is so. The examiner must report whether there is a lack of normal endurance or functional loss due to pain and pain on use, including that experienced during flare ups; whether there is weakened movement, excess fatigability, or incoordination; and the effects of the service-connected disability on the Veteran's ordinary activity, including his ability to work. 4. Confirm that the VA examination reports and all opinions provided comport with this remand and undertake any other development found to be warranted. 5. Then, readjudicate the remaining claims on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. §§ 5109B, 7112 (2012). ______________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs