Citation Nr: 18141380 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 16-29 022 DATE: October 10, 2018 ORDER Entitlement to an effective date earlier than February 27, 2014, for the award of a 10 percent rating for pseudofolliculitis barbae and tinea pedis is denied. REMANDED Entitlement to service connection for eczema is remanded. FINDINGS OF FACT 1. VA received a claim for an increased rating for pseudofolliculitis barbae and tinea pedis on February 27, 2014. 2. It was not factually ascertainable that an increase in disability was shown within the one-year period prior to February 27, 2014, based upon the applicable legal criteria and the evidence of record. CONCLUSION OF LAW The criteria for an effective date earlier than February 27, 2014, for the award of a 10 percent rating for pseudofolliculitis barbae and tinea pedis have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.157, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1996 to November 1997. In an August 2018 Informal Hearing Presentation, the Veteran’s representative included the issues of an increased rating for pseudofolliculitis barbae, service connection for degenerative disc disease and service connection for a neck disability. However, the Veteran specifically limited his appeal to an earlier effective date for the award of a 10 percent rating for pseudofolliculitis barbae and tinea pedis and service connection for eczema. See July 2016 VA Form 9. Effective Date Claim Specific to claims for increased disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if a claim is received by VA within one year after that date. Otherwise the effective date will be the date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o)(2). A claim is 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). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, the authorized representative, or a person acting as next friend who is not sui juris may be considered an informal claim. 38 C.F.R. § 3.155. VA received the Veteran’s claim for an increased rating for pseudofolliculitis barbae and tinea pedis on February 27, 2014. A September 2014 rating decision granted an increased 10 percent rating for pseudofolliculitis barbae and tinea pedis, effective February 27, 2014, the date of receipt of the claim. Initially, the Board notes that in December 1997 (within one year of his separation from service), the Veteran filed a claim of entitlement to service connection for various skin disabilities. As is pertinent here, a March 1998 rating decision granted service connection for pseudofolliculitis barbae and tinea pedis and assigned a noncompensable disability rating, effective November 13, 1997, the day after his separation from active duty. The Veteran did not appeal that rating decision or submit new and material evidence within one year of that decision, and the decision therefore became final. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 20.1100, 20.1103. Thus, in the absence of clear and unmistakable error, an effective date of the original November 13, 1997, award for service connection is not for application. Rudd v. Nicholson, 20 Vet. App. 296 (2006). Also, a December 2001 rating decision denied entitlement to a disability rating in excess of 10 percent for the Veteran’s pseudofolliculitis barbae and tinea pedis. The Veteran was notified of this decision in a December 21, 2001, letter but did not appeal. He also did not submit new and material evidence within one year of that decision. Therefore, that decision is also final. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 20.1100, 20.1103. Given the finality of the December 2001 rating decision, in the absence of clear and unmistakable error, the effective date of the award of increased rating for pseudofolliculitis barbae and tinea pedis can be no earlier than the date of notification of that decision (December 21, 2001). The record does not show, and the Veteran does not allege, that he filed a claim for increase prior to February 27, 2014, and after the December 2001 rating decision. Rather, he contends that because he filed his original service connection claim in 1997, the effective date of the increased should be 1997. See October 2014 notice of disagreement and July 2016 VA Form 9. However, as explained above, an effective date of 1997 is not available. Review of the record shows no correspondence from the Veteran dated prior to the February 27, 2014, claim for increase and after the December 2001 rating decision that can be construed as a claim for increase. Therefore, the Board finds that there was no pending claim for an increased rating for pseudofolliculitis barbae and tinea pedis prior to February 27, 2014. Additionally, during the period under consideration, no such record indicates entitlement to a 10 percent rating for pseudofolliculitis barbae and tinea pedis prior to February 27, 2014, which requires dermatitis or eczema affecting at least 5 percent, but less than 20 percent, of the entire body, or at least five percent, but less than 20 percent, of exposed areas, or; when intermittent systemic therapy (such as corticosteroids or other immunosuppressive drugs) are required for a total duration of less than six weeks during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806. The record does not indicate that the Veteran met the criteria for a higher 10 percent disability rating based on such prior to February 27, 2014. In fact, VA treatment records from the year prior to February 27, 2014, note numerous physical complaints and treatment, but nothing related to skin disabilities. In light of the foregoing, the Board finds that it was not factually ascertainable that an increase in disability was shown within the one-year period prior to February 27, 2014, based upon the applicable legal criteria and the evidence of record. To the extent that the Veteran asserts that equity warrants the assignment of an earlier effective date extending to the date of the original claim for service connection, matters of equitable relief are only within the discretion of the Secretary of VA. The Board does not have the authority to award equitable relief. 38 U.S.C. § 503; Darrow v. Derwinski, 2 Vet. App. 303 (1992). In conclusion, an effective date earlier than February 27, 2014, for the award of a 10 percent rating for pseudofolliculitis barbae and tinea pedis is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Service Connection for Eczema The Veteran asserts in his October 2014 notice of disagreement that service connection for eczema was incorrectly denied because he is already service-connected for this disability. A review of the record shows, however, that when he was originally awarded service connection for a skin disability, it was for pseudofolliculitis barbae and tinea pedis specifically. See March 1998 rating decision. As eczema is a separate skin disability, service connection for that additional diagnosis must be established. Although VA medical opinions were obtained in 2014, 2016 and 2018, the examination reports are inadequate for adjudication purposes. Specifically, the VA examiners reviewed the claims file and stated that eczema is less likely than not caused by, due to, or the result of service-connected pseudofolliculitis barbae and tinea pedis. However, the language “due to”, or “etiologically related”, or “the result of” does not adequately address whether a nonservice-connected disability was aggravated by a service-connected disability. See generally, El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Therefore, remand for another VA medical opinion to address secondary service connection is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Additionally, a clarifying medical opinion on direct service connection is also needed. In this regard, the 2014 VA examiner opined that the Veteran’s eczema was not caused by or a result of the contact dermatitis that he was treated for in service. However, the 2018 VA examiner provided conflicting medical opinions as to whether the Veteran’s eczema is related to his service. Specifically, the 2018 VA examiner opined that the Veteran’s claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, but in the explanation for the rationale of that opinion, the examiner also stated, “Veteran does have eczema that did incur and/or was caused by his military service.” Finally, a Supplemental Statement of the Case (SSOC) was not issued after the completion of the 2018 VA examination and no waiver of Agency of Original Jurisdiction is of record. See 38 C.F.R. § 19.31. Thus, a remand is also required to issue an SSOC. The matter is REMANDED for the following actions: 1. Forward the Veteran’s claims file to an appropriate VA examiner who must review the claims file (to include this remand) and provide an addendum opinion as to a) whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s eczema is etiologically related to his service; and b) whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s service-connected pseudofolliculitis barbae and tinea pedis, including its treatment, caused the Veteran’s eczema or aggravated the eczema. For the purposes of secondary service connection, the examiner is advised that aggravation is defined as “any increase in disability.” See Allen v. Brown, 7 Vet. App. 439, 448 (1995). If the examiner determines that the requested opinion may not be provided without a physical examination of the Veteran, then such should be scheduled. A complete rationale must be provided for all opinions presented. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should provide an explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. After the above development is completed, readjudicate the claim, with consideration of all evidence of record, to specifically include evidence associated with the record after the issuance of the May 2016 Statement of the Case (SOC). If the claim is denied, issue a Supplemental SOC and allow the applicable time for response. Then, return the case to the Board, if in order. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.R.Fletcher, Counsel